P. v. Nunes 11/1/11 CA3

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State: California

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

Docket No: C060871

Case Date: 02/15/2012

Preview:Filed 11/1/11

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, Plaintiff and Respondent, v. AUSTEN ROBERT MANUEL NUNES et al., Defendants and Appellants.

C060871 (Super. Ct. Nos. 072135/054185)

APPEAL from a judgment of the Superior Court of Yolo County, Timothy Fall, Judge. Affirmed in part and reversed in part. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Austen Robert Manuel Nunes. Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant Pauliton Recardo Nunes. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Bonge.

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, Factual and Procedural Background, part VIII of the Discussion, the Disposition, and the concurring and dissenting opinions are certified for publication. 1

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION In April 2007, defendants Austen Nunes, Pauliton Nunes, and Daniel Bonge1 went with several others to the train tracks in West Sacramento to drink some stolen beer. When an Amtrak train

came by, slowing as it approached Sacramento, one of the group stood on the tracks, and Austen threw a rock at the train. train stopped and the angry engineer got off the train. vicious assault on the engineer followed. Defendants (and two others not before us) were prosecuted for multiple felonies, including attempted murder and assault with a deadly weapon on a public transit employee with great bodily injury and criminal street gang enhancements. The jury A The

found defendants guilty of most of the charges and found most of the great bodily injury enhancement allegations true, but found the gang enhancement allegations were not true. The jury did,

however, find defendants guilty of the offense of criminal street gang activity (sometimes called street terrorism). On appeal, defendants contend: (1) it was error to qualify

Police Officer Kenneth Fellows as a gang expert; (2) Officer Fellowss testimony improperly invaded the province of the jury;

1

Because they have the same last name, we refer to Austen and Pauliton Nunes by their first names. We will refer to all three defendants collectively as defendants. 2

(3) there was insufficient evidence to support their convictions of criminal street gang activity; and (4) in any event the trial court should have stayed the sentence for criminal street gang activity pursuant to Penal Code2 section 654. Austen and

Pauliton further contend the trial court erred in failing to instruct the jury that the testimony of Bonges girlfriend, C. S., had to be corroborated because she was an accomplice. In

addition, Austen contends there was insufficient evidence he personally inflicted great bodily injury. defendants three remaining contentions: The People concede (1) their convictions

for assault with a deadly weapon (counts 2 through 4) should be reversed because those offenses are lesser included offenses of assault with a deadly weapon on a public transit employee, of which defendants were also convicted (counts 5 through 7); (2) the great bodily injury enhancements to their convictions for battery with serious bodily injury (count 8) must be stricken; and (3) the amount of their court security fees must be corrected. We agree with those of defendants claims the People have conceded and reverse defendants convictions for assault with a deadly weapon (counts 2, 3, and 4) and the great bodily injury enhancements on their battery convictions (count 8). correct the amount of the court security fees. however, we affirm the judgment. We also

Otherwise,

As we will explain, the gang

2

Further unspecified section references are to the Penal Code. 3

expert was properly qualified and his testimony did not exceed the permissible scope for a gang expert. There was substantial

evidence of criminal street gang activity, and there was no evidence C. S. was an accomplice. Moreover, her testimony

provided substantial evidence that Austen personally inflicted great bodily injury. FACTUAL AND PROCEDURAL BACKGROUND A The Crimes On April 16, 2007, several people, including defendants, was hanging out and drinking at the Pickwick Motel in West Sacramento. Among the group was Bonges girlfriend, C. S., and

her brother Ernie, a self-proclaimed Broderick Boys gang member. The group took multiple photographs at the motel that were later found on Paulitons cell phone, which was discovered at the scene of the attack on the train engineer. The photographs

showed defendants and some others making gang signs outside the motel. In particular, they were forming the letter "N" and the

number "14" or "XIV," which symbolize the Norte

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