P. v. Barragan 3/8/02 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D036697

Case Date: 05/16/2002

Preview:Filed 3/8/02

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO J. BARRAGAN et al., Defendants and Appellants.

D036697

(Super. Ct. No. SCE201483)

APPEALS from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed in part; reversed in part.

Antonio J. Barragan was found guilty of possession of a firearm by a felon. Carlos Paz was found guilty of assault with a firearm. It was found true Barragan had two prior felony convictions within the meaning of Penal Code1 section 1203.4 and a prior strike conviction within the meaning of section 667, subdivisions (b) through (i). It was found true Paz personally used a firearm and committed his crime for the benefit of a

criminal street gang. Barragan was sentenced to a prison term of four years, Paz to a term of nine years. They appeal, arguing evidentiary and sentencing issues. FACTS AND BACKGROUND A. Prosecution Evidence Appellants were charged with conspiracy to commit murder, conspiracy to commit robbery, conspiracy to assault with a firearm and with assault with a firearm. Barragan was additionally charged with being a felon in possession of a firearm. Barragan was found not guilty of the conspiracy charges and the assault charge but was found guilty of being a felon in possession of a firearm. Paz was found not guilty of conspiracy to commit robbery. The jury was unable to reach a verdict as to him on the conspiracy to commit murder and conspiracy to assault with a firearm charges but found him guilty of assault with a firearm. The charges against appellants arose from events in the early morning hours of November 21, 1999, that the prosecutor unsuccessfully argued involved a conspiracy by appellants and co-defendant Joaquin Ruiz to commit robbery and to kill rival gang members. We relate the facts relevant to the charges on which appellants were convicted. At approximately 11:45 p.m. on November 20, 1999, Steven Barton went to his neighborhood Circle K market. Barragan was in the store eating a hotdog. As Barton walked out of the market, he saw Paz and another man come around a corner. Another man immediately behind Barton was leaving on a bicycle. Paz drew a gun and raised it

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All further statutory references are to the Penal Code unless otherwise specified. 2

to an angle of 45 degrees. Barton was afraid Paz was going to shoot him. As Barton got in his car and left, Paz lowered the gun. Barton stopped and called the police. In the early morning hours of November 21, 1999, Christina Sick and Amanda O'Dell met Christina's boyfriend Angel Lopez in the parking lot of the same Circle K where Barton had seen appellants. A car driven by Paz pulled into the lot and the men inside talked to Lopez. Paz had a gun in his hand. He asked Lopez: "Where are you from?" In the gang subculture this is a conditional threat, i.e., if Paz was unhappy with the answer, there could be violence. The situation was defused when it became clear that Lopez was not a member of a rival gang. The men drove to the back of the store and parked. Two of the men, Barragan and Paz, walked back to where Sick and Lopez were standing and continued to talk with them. Paz took out a gun removed its bullets and handed it to Barragan. Barragan placed the gun to his head and pulled the trigger. The gun did not fire. A third man was talking to O'Dell. When police officers arrived, Barragan ran but was caught. A loaded .357 revolver was found on Paz. A videotape, found during a search of Paz's car, made on November 20, 1999, showed Barragan with what appeared to be a handgun in his waistband. The conversation between Barragan and others tended to confirm his possession of the firearm. The conversation also suggested appellants and others were planning to commit gang related crimes. B. Defense Evidence Barragan testified and denied being in possession of a firearm either during the making of the videotape or at Circle K. 3

As to the assault charge, Paz argued the testimony of the witnesses was unreliable and no assault was proved. DISCUSSION A. Section 995 Motion Barragan filed a section 995 motion asking that all charges against him be dismissed. The trial court granted the motion as to one charge of assault with a firearm but denied it as to the remaining conspiracy, assault with a firearm and firearm possession charges. Barragan argues the trial court erred in refusing to dismiss the remaining conspiracy and assault charges, contending there was insufficient evidence to support them. He argues the error was prejudicial since had the trial court granted the motion, evidence of his gang involvement, relevant to the conspiracy and assault charges but irrelevant to the firearm possession charge, would have been excluded. 1. Background Barragan and Paz were charged with three conspiracy counts and two assault with a firearm counts. Barragan was charged with one count of being a felony in possession of a firearm. With the exception of the firearm possession charge, each count alleged the crime was committed to assist in criminal conduct by a gang within the meaning of section 182.22, subdivision (b)(1). In his conclusory section 995 motion, Barragan argued the evidence at the preliminary hearing supporting the conspiracy charges was lacking since there was no evidence of his intent to commit any of the crimes to which the conspiracies were allegedly directed. Although claiming the assault with a firearm and firearm possession 4

charges should also be dismissed, the exact basis for such dismissal was not clearly stated. The prosecutor responded there was sufficient evidence to support each of the charges. As to the assault with a firearm charge in count four, the prosecutor stated the charge related to the initial confrontation between Lopez and appellants when Paz, displaying a firearm, asked Lopez about his gang affiliation. The prosecutor argued Paz and Barragan where operating in association and the question concerning gang affiliation was an assault based on a conditional threat theory. The trial court granted the motion as to the assault with a firearm count not involving Lopez and denied it as to all other counts. At trial Barragan was found not guilty of the conspiracy and assault with a firearm charges but guilty of being a felon in possession of a firearm. Paz was found guilty of assault with a firearm and not guilty of conspiracy to commit robbery. As to the charges of conspiracy to commit murder and conspiracy to commit assault with regard to Paz, the jury was unable to reach a verdict. 2. Law "Penal Code section 995 permits the court to set aside an information on a finding that the defendant was committed without reasonable or probable cause. On appeal, the superior court's decision to set aside the information is disregarded, and the magistrate's determination holding the defendant to answer is directly reviewed. [Citation.]" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1748.) "Our task is to determine whether the magistrate, acting as a person of ordinary prudence, could conscientiously entertain a 5

reasonable suspicion that the defendant committed the crime charged. [Citation.] To that end, we draw every legitimate inference supported by the competent evidence and refrain from substituting our judgment for that of the magistrate. If the record demonstrates some showing of every element of the charge [citation], we must affirm the magistrate's ruling denying the motion to set the charge aside. [Citations.]" (Ibid., internal quotation marks omitted.) On appeal "an erroneous denial of a section 995 motion justifies reversal of a judgment of conviction only when a defendant is able to demonstrate prejudice at trial flowing from the purportedly inadequate evidentiary showing at the preliminary hearing. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 136-137.) 3. Discussion Whatever the propriety of the magistrate's finding of sufficient evidence with regard to the conspiracy counts -- a complex question -- Barragan cannot demonstrate prejudice since we conclude the evidence was sufficient to bind him over on the assault with a firearm charge. That count included a gang involvement allegation pursuant to section 182.22, subdivision (b)(1), and proof of the assault charge as to Barragan necessarily was based on an aiding and abetting theory. That being the case, evidence of Barragan's gang involvement would have been admitted even if the conspiracy charges had been dismissed. The charge of assault with a firearm was based on the theory of conditional threat concerning Paz's demand that Lopez reveal his gang affiliation. "'Where a party puts in a condition which must be at once performed, and which condition he has no right to 6

impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party and missed him.'" (People v. Lipscomb (1993) 17 Cal.App.4th 564, 570, citing People v. McMakin (1857) 8 Cal. 547, 548-549; see also CALJIC No. 9.00.1.) To support a finding of assault with a firearm under this theory, it is unnecessary the weapon be pointed at the victim. (See People v. McMakin, supra, 8 Cal. at pp. 548549.) It was the prosecution's theory Barragan was vicariously responsible for Paz's assault on Lopez. Evidence was presented at the preliminary hearing that Barragan and other gang members were together in the car when Paz, holding a gun, confronted Lopez and demanded he declare his gang affiliation. Given the context of the demand, there was sufficient evidence to conclude that had Lopez not answered or if Paz were not satisfied with the answer, he would have shot Lopez. Indeed, Paz was convicted at trial of assaulting Lopez based on that theory. Given the evidence presented at the preliminary hearing of Lopez's association with Paz, their common gang membership and Lopez's activities at Circle K that evening, there was sufficient evidence to conclude Barragan aided and abetted Paz in the assault. Since there was probable cause to bind Barragan over for trial on the assault with a firearm charge involving Lopez and since trial of that charge and its attendant gang involvement allegation would have made relevant evidence concerning Barragan's gang 7

membership, no prejudice was done even assuming the trial court erred in not dismissing the conspiracy charges. B. Strike Enhancement Barragan argues there was insufficient evidence to support the true finding on his alleged strike prior. In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.) 1. Background The information alleged that within the meaning of section 667, subdivisions (b) through (i), Barragan had suffered a prior juvenile adjudication in case No. JD887757 for assault with a deadly weapon (

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