People v. Pena
| Decision Date | 18 June 2021 |
| Docket Number | B303543 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CARLOS PENA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BA425994, Jose I. Sandoval Judge.
Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Carlos Pena of home invasion robbery, burglary, and assault by means likely to produce great bodily injury. He appeals, arguing that the evidence was insufficient to support the verdicts and the trial court committed instructional and sentencing errors. Discerning no prejudicial error or evidentiary insufficiency we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND[1]
Hugo O. owned a duplex located on Sheridan Street in Los Angeles, where he lived with his girlfriend, Maricarmen G.; her eight-year-old son sometimes stayed there as well. The duplex was divided into two apartments, one upstairs and one downstairs. Hugo and Maricarmen lived in the upper apartment, and used the living room as their bedroom.[2] Hugo rented three bedrooms in the upper apartment to other persons, including Marcos L., one of Hugo's “helpers” in his construction business. Another helper stayed in the downstairs apartment. The upper apartment had a front door that led into the living room, and a back door off the kitchen. The property was surrounded by a chain link fence, and was equipped with a security camera that showed the front yard and entrance. Hugo worked as a contractor in the construction industry, and was not a gang member.
Pena, Everardo Estrada, Carlos Flores, and Jorge Nieto were all members of the State Street criminal street gang. Estrada, who went by the moniker “Lalo, ” and Flores, who went by the moniker “Solo, ” were in their 40's. They were “respected, ” older members of the gang. Pena, who was 19 at the time of the crimes, went by the moniker “Trigger” or “Little Trigger.” Nieto, who was known as “Sporty, ” was 17. Nieto and Pena had known each other for years.
State Street gang members would often jump Hugo's fence and cross his property. Over time, their behavior escalated, and they would break into the lower apartment and hang out there. When Hugo asked them to stop, they laughed, said it was their neighborhood, and he could not tell them what to do. When Hugo told Estrada he would call the police, Estrada replied, “Well, go ahead and you see what's going to happen to you motherfucker.” Afraid, Hugo did not follow through on his threat. On one occasion the gang members broke a couple of windows; on another, they kicked the door of the upper apartment, damaging it. Hugo boarded up the lower level in an attempt to stop them entering, but they pulled the boards off.
Nieto, however, was friendly towards Hugo. Nieto told Hugo he did not think it was right for the other gang members to invade his property, and said he was on Hugo's side. Hugo allowed Nieto into the upstairs apartment and socialized with him sometimes. Pena was also cordial to Hugo. At some point, Hugo offered both Pena and Nieto jobs. He also asked them to keep the other gang members from invading the lower apartment.
Hugo did not own an assault rifle. However, approximately a month before the charged crimes, “Mike, ” a friend of one of Hugo's tenants, brought an assault rifle to the duplex and showed it to Hugo. Hugo held the rifle, and then gave it back to Mike. Nieto was present at the time; he held the rifle as well. Hugo saw the rifle at the duplex the next day.
Approximately two weeks later, in mid-May 2014, Estrada and two other gang members came to the duplex and demanded that Hugo give Estrada two guns and $400 within two weeks. Hugo stated he did not think that would be possible. Estrada said he was not playing, and Hugo “better have that ready for me in two weeks or you'll take the consequences motherfucker.”
At approximately 2:00 a.m. on June 8, 2014, Hugo was in his tenant Marcos's room, talking to Marcos and Marcos's two friends, who were visiting. Maricarmen was in the living room, awake; her son was asleep. Via the security camera, she saw five men running toward the front door. Pena was among them. As he approached, Maricarmen heard Pena say, “Who cares, fool, we'll just blast him.” The men banged on the door, repeatedly screaming “open the door” and threatening to break it down. She ran to get Hugo. When she and Hugo returned to the front door, they found a gang member already inside, trying to open it for the others. However, the door had three locks and the intruder could not reach the highest one. The intruder told Hugo, “there's someone here to see you.” Hugo told him no one was coming into his house, and ordered him to get out. As Hugo pushed the intruder toward the back door, Hugo told Maricarmen to stay in the living room and if something didn't seem right, to call the police.
Thereafter, a man came into the living room, demanded Maricarmen's cell phone, and told her to stay there with the door closed. Maricarmen could hear men in the duplex, demanding that everyone give them their wallets and cell phones, and telling them to “shut the fuck up.” She recognized Estrada's voice, and heard him punching someone. At some point a gang member placed Victoria, a visitor who was also present in the duplex, in the room with Maricarmen. Victoria advised Maricarmen to take her son and leave. Maricarmen did so, despite her fears for Hugo. She ran with her son to a fast food restaurant, where she called 911. A tape of her frantic 911 call was played for the jury.
Meanwhile, just after he told Maricarmen to stay in the living room and as he was escorting the intruder out the back, Hugo encountered Pena and Nieto coming inside through the back door. They forced him into Marcos's room. Pena said quietly to Hugo, “Hey, they're going to ask you if you have guns here[, ] just tell them you don't have any and you're going to be okay.”
Flores entered the room and said he was Solo from State Street, he was there to get something that belonged to one of his friends, and someone else needed to talk to Hugo as well. Estrada entered the room and ordered Nieto and Pena to take wallets and phones from Hugo, Marcos, and Marcos's friends. Pena took Hugo's phone and wallet. Nieto took wallets and phones from Marcos and the two visitors. Hugo complied with the demand to relinquish his wallet and phone because he was afraid and was outnumbered.
After obtaining the phones and wallets, Nieto and Pena stood back. Estrada said, “So where is my stuff that I asked you to get motherfucker.” Hugo replied that he didn't know what Estrada was talking about. Estrada replied, “where my guns and my money motherfucker.” Estrada then punched Hugo in the face, breaking his nose and knocking him to the ground. Hugo did not fight back. Estrada kicked Hugo's head and body and then forced him to stand up. Estrada said: “I'm going to ask you one more time motherfucker, I'm not fucking playing where is my guns and my money.” When Hugo said he had nothing for Estrada, Estrada resumed the attack, punching Hugo's face and body. Estrada then said to Flores, “Come on, you can fuck him up.” When Marcos attempted to come to Hugo's aid, the assailants forced him to face the wall on his knees.
Flores and Estrada engaged in a prolonged attack on Hugo. They took turns kicking, stomping and punching him. They stood on his stomach and knees and jumped with full force, and pushed his head into the floor. Estrada burned Hugo's hand with a lit cigarette. Pena did not participate in the attack, and Hugo did not see Pena after he took Hugo's phone. During the assault, Hugo did not fight back, but simply tried to cover himself.
Eventually, Estrada complained that his hand was hurting from hitting Hugo, and demanded that someone retrieve a knife from the kitchen so he could “finish this motherfucker.” No one responded. Estrada repeated his command, but then noticed one of Hugo's construction tools, a cordless drill with a three-inch screwdriver bit. Estrada grabbed the drill and threatened to put out Hugo's eyes with it. He attempted to do so, but Hugo used all his remaining strength to push the drill away. Estrada then used the drill on Hugo's stomach, inflicting two wounds through his clothing. At some point during the attack, Estrada pulled cash from Hugo's wallet and said, “Look, boys, more money for the hood.”
Estrada then told Nieto, “You fuck him up now, ” and Nieto moved to comply; however, Estrada changed his mind and stopped him. Estrada then asked Hugo where Maricarmen was. Hugo said she was in the living room where her son was sleeping, and pleaded with him to “leave her out of this” and not hurt her or her child. Estrada replied that he did not “give a fuck” about them. Estrada told Nieto to grab Hugo, and the group headed for the living room. As they walked down the hall, Estrada came up behind Hugo and hit the back of his head with the drill, causing a large gash and excruciating pain. Hugo almost lost consciousness, but Nieto pulled him to his feet.
Upon discovering that Maricarmen was no longer in the living room Estrada called Hugo a liar and said, “let's take this motherfucker for a ride.” He told Nieto and Flores to take any of Hugo's tools that they wanted. Hugo observed them yank the surveillance camera...
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