People v. Casares
| Decision Date | 29 June 2022 |
| Docket Number | F079797 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESUS CASARES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No BF174063A David R. Zulfa, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Michael P. Farrell Assistant Attorney General, Carlos A. Martinez, Darren K Indermill and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
After forcing his way into an apartment on October 8, 2018, defendant Jesus Casares grabbed an 11- to 12-inch pointed nail and held it up as if to stab victim R.H.[1] A jury convicted defendant of burglary, assault with a deadly weapon, and resisting a police officer and found true allegations a nonaccomplice was present during the crime and that the crimes were committed for the benefit of a gang.
Defendant contends on appeal that (1) the evidence was insufficient to support his conviction for assault with a deadly weapon because defendant failed to "do anything" with the nail before he was disarmed by R.H., (2) the trial court erred in failing to define "deadly weapon" in its instruction to the jury, and (3) we should strike five 1-year prior prison term enhancements in light of recent amendments to Penal Code[2] section 667.5, subdivision (b). In supplemental briefing, defendant contends that we should reverse the true finding on defendant's five-year gang enhancements in light of recent amendments to section 186.22, overturn his conviction, and remand for retrial in light of recently enacted section 1109, which requires bifurcation of the gang enhancement when requested by a defendant.
The People concede that defendant is entitled to the benefit of recent amendments to sections 667.5 and 186.22 but oppose retroactive application of section 1109 and argue that any failure to bifurcate was harmless in any event. We accept the People's concession but reject defendant's remaining arguments. We shall strike the prior prison term enhancements, reverse the true findings on the gang enhancements, and remand for further proceedings but affirm the judgment otherwise.
The District Attorney of Kern County filed an information on October 25, 2018,[3]charging defendant with burglary of an inhabited dwelling with intent to commit a felony (§ 460, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and resisting a police officer (§ 148, subd. (a)(1); count 3), a misdemeanor. As to count 1, the amended information further alleged that another person, other than an accomplice, was present in the apartment during the burglary, making the offense a violent felony (§ 667.5, subd. (c)(21)). As to both counts 1 and 2, the amended information alleged that the crimes were committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)) and that defendant had a prior "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a prior serious felony conviction (§ 667, subd. (a)), and served five prior prison terms (former § 667.5, subd. (b)).
On April 25, 2019, after a nine-day trial, the jury convicted defendant of all charges and found true all enhancements. Defendant waived a jury determination on his prior convictions, and the trial court found true the prior conviction allegations.
On July 11, 2019, the trial court denied probation and sentenced defendant to the upper term of 12 years in prison as to count 1 (§§460, subd. (a), 667, subd. (e)), plus 10 years (former § 186.22, subd. (b)(1)), plus five years (§ 667, subd. (a)), plus five years (former §667.5, subd. (b)), for a total term of 32 years. As to count 2, the trial court sentenced defendant to an upper term of eight years (§§ 245, subd. (a)(1), 667, subd. (e)), plus five years (former § 186.22, subd. (b)(1)) but stayed the term pursuant to section 654. As to count 3, the trial court sentenced defendant to a concurrent term of one year (§ 148, subd. (a)(1)).[4]
The court imposed a $10 crime prevention fine (§ 1202.5), a $300 restitution fine (former § 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (§ 1202.45, subd. (a)), victim restitution as determined by probation (former § 1202.4, subd. (f)),[5] an aggregate $120 court operations assessment (§ 1465.8), and an aggregate $90 criminal conviction assessment (Gov. Code, § 70373).[6]
This timely appeal followed on August 14, 2019.
In the afternoon of October 8, 2018, police performed a probation search at Jessica Barraza's apartment in Bakersfield (the apartment). Phillip Aguilar, who was a member of the Colonia Baker street gang, Ruth M., and Ruth's child also resided there. The apartment was used by several people to socialize drink, and use drugs. During the search, Officers Nicole Madsen and Kyle McNabb noticed that the two doors to enter the apartment were not damaged. Barraza was arrested after the search.
R.H. was inside the apartment later that evening. While in the bedroom, he heard banging on the living room door.[7] R.H. heard defendant angrily demanding to be let into the apartment and Ruth's voice responding. Within a minute or two, the banging stopped and R.H. heard the door open. Defendant had kicked in the door. R.H. then heard defendant yelling and rambling while inside the apartment.
As R.H. left the bedroom, he picked up an 18-inch crowbar from the hallway in order to protect himself, Ruth, and her child as he entered the room where defendant was standing. As they moved toward the kitchen, defendant picked up an 11-inch nail, approximately two to three centimeters thick, and used it to try to intimidate R.H. Defendant held the nail in a low and ready position with the head close to his wrist and approximately nine inches exposed with the pointed end toward R.H. as if to stab him.
Defendant was upset and accused R.H. of trying to run him out of the apartment. Later, while outside, defendant told R.H. that he would have stabbed R.H. with the nail. R.H. told defendant that if defendant intended to do something, then to just do it. R.H. testified, "I felt that either I'm going to get stabbed with the nail, or I could take it from him, or I could either hit him with the crowbar and we can go on from there." R.H. felt defendant would stab him if he was not quick enough. R.H. distracted defendant and grabbed the nail from him. R.H. either pushed defendant from the apartment or verbally ordered him out. While defendant was angry and verbally resisted, he did leave the apartment and was only inside for a minute or two.
R.H. followed defendant, who was still angry and yelling, outside with the crowbar. R.H. next saw that defendant had a knife and yelled that he wanted to have a knife fight. R.H. went back into the house and heard defendant yelling with Carmen H. outside. Ruth was on the telephone with the police.
R.H. did not know that defendant was a member of a gang but learned it that night when defendant yelled that he was from Los Primos, a subset of the Loma Bakers, and that there was no point in trying to prevent what was going to happen because of his status. R.H. did not want to testify and was in custody because he violated a court order to remain in the courthouse to testify the prior week.
Carmen arrived at the apartment in the evening. She testified that she was under the influence of drugs at the time and found it difficult to remember the events of that evening. Defendant, looking upset and angry, was knocking on and hitting the screen door for at least 30 minutes. He was trying to get into the house. Carmen told the police that defendant had caused the damage to the door but testified that the screen door had been damaged before that and allowed people to put their hands through the screen to turn the knob.
Carmen also saw defendant trying to get into the apartment from the screen door that opened into the alley and jumping up and down on a van that was parked there. She never saw defendant enter the apartment. R.H. was arguing with defendant from inside the apartment through the door. Defendant yelled out "Loma," the name of the local gang, while banging on the door. Defendant also yelled out, "I'm going to get you, motherfucker." She did not know if defendant saw the police or not, but after a police car arrived, he was gone.
Responding to the apartment again later that evening in her patrol car, Officer Madsen saw three individuals in the alley, illuminated by lights of a nearby store. Defendant ran, and she chased him on foot, into the apartment complex where two other officers apprehended him.
Officer McNabb, upon returning that evening, noted that the metal access door on the west side now was damaged in the area of the wire netting near the knob and the wooden door had splintered and showed signs of forced entry. Officer McNabb encountered defendant at the front of the apartment. During the conversation that followed, defendant admitted to being a member of the Loma Bakers and claimed he still had a good reputation and respect within the gang. Defendant also told Officer McNabb that area was defendant's "hood" and he would act if something was happening that he did not like. When asked why he was at the apartment, defendant said that he went there to see his girlfriend, Monica Hernandez, because he was concerned that she was involved in criminal activity at the apartment. Defendant explained that he used to hang out at the apartment until the criminal activity...
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