People v. Picado

• Decision Date: 05 November 2004
• Docket Number: No. A102251.,A102251.
• Citation: 20 Cal.Rptr.3d 647,123 Cal.App.4th 1216
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mauricio PICADO, Defendant and Appellant.

20 Cal.Rptr.3d 647

123 Cal.App.4th 1216

The PEOPLE, Plaintiff and Respondent, v. Mauricio PICADO, Defendant and Appellant.

No. A102251.

Court of Appeal, First District, Division 5.

November 5, 2004.

Certified for Partial Publication.^* Review Granted January 19, 2005.

Review Dismissed and Cause Remanded September 7, 2005.

Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General, for Plaintiff and Respondent.

STEVENS, J.

Mauricio Picado (Picado) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of four counts of felony assault (Pen.Code, § 245, subd. (a)(1))¹ and certain misdemeanors, and found the offenses were gang-related for purposes of sentencing (§ 186.22, subd. (b)(1)). He contends: (1) the court erred in imposing consecutive sentences for each felony assault conviction and respective gang enhancement, since on each count he was convicted merely as an aider and abettor or co-conspirator based on a single underlying act and objective; (2) his presentence credits and the abstract of judgment should be corrected, because his offenses did not constitute violent felonies within the meaning of section 2933.1; and (3) the evidence was insufficient to prove his offenses were gang-related. In addition, Picado maintains, the imposition of the statutory upper term for felony assault and the imposition of consecutive sentences violated the Sixth Amendment under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely).

In the published portion of our opinion, we conclude the court properly imposed consecutive sentences even if Picado was convicted as an aider and abettor, and Blakely does not invalidate his sentence. In the unpublished portion of the opinion, we rule that the abstract of judgment and calculation of his credits are in error, and the evidence was sufficient to uphold the gang enhancement.

We will remand the matter to the trial court for correction of the abstract of judgment and recalculation of Picado's presentence credits. The judgment will be affirmed in all other respects.

I. FACTS AND PROCEDURAL HISTORY

After Picado's younger brother Walter had two brief fistfights with Danny C. (Danny), Picado engaged in two altercations with Danny, his friends, and family members. These two latter altercations— occurring on January 16, 2001, and April 24, 2001—are the subject of this appeal.

In count one of a second amended information,² Picado was charged with a January 16, 2001, assault with a deadly weapon on Danny's friend, Jesus Jesse Martinez (Jesse) (§ 245, subd. (a)(1)), with personal use of a knife (§ 1192.7, subd. (c)(23), § 12022, subd.(b)(1)). The remaining nine counts charged Picado and two codefendants Jorge Lagunas (Lagunas) and Javier Meza (Meza), with assaults with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1)), hereafter "felony assault") on April 24, 2001. Count two charged a felony assault on Danny's mother, Linda, with a stick, alleging that Lagunas personally used a weapon (the stick). Count three charged a felony assault upon Jesse with a screwdriver.³ Count four alleged a felony assault upon Jesse with a metal club, and further alleged that Picado personally used a deadly weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Count five charged a felony assault on Jesse with a metal club (§ 245, subd. (a)(1)). Count six charged a felony assault on Danny's sister, Crystal, with a stick, alleging that Meza personally inflicted great bodily injury. Count seven charged a felony assault on Danny's friend, Damien, with a screwdriver. Count eight charged Picado with felony assault on Damien with a metal club, with personal use of a deadly weapon (§ 1192.7, subd. (c)(23), § 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). Count nine charged a felony assault upon Danny's younger brother, Jeremy, with a stick. Count ten charged felony assault upon Jesse with an automobile, with personal use of a deadly weapon (§ 1192.7, subd. (c)(23), § 12022, subd. (b)(1)). In addition, the information alleged with respect to counts two through nine that the offenses were gang-related for purposes of sentencing enhancements (§ 186.22, subd. (b)(1)). The matter proceeded to trial before a jury.

A. PROSECUTION EVIDENCE

Linda C. lived with her husband and four children, Danny (aged 13 at the time of the incident), Crystal (15), Jeremy (11), and Hannah (4), in San Leandro. Danny had been friends with Picado's brother Walter since the sixth grade. But one day in the summer of 2000, Walter said that Danny's friend Damien was Danny's "bitch," leading Walter and Danny to exchange a couple of punches. A few months later, Walter and Danny engaged in another fistfight for about 20 to 30 seconds, after Walter had purportedly chased Jeremy down the street.

Some time later, while Danny sat at a bus stop, Walter and Picado drove up in a blue truck. Picado warned Danny not to "mess with" his brother Walter. They taunted Danny to fight one-on-one, but Danny refused. As Picado drove away, he said "BB right here;" "BB" was a reference to the Border Brothers street gang.

1. January 16, 2001, Events

On January 16, 2001, Danny was walking with his girlfriend, when Picado drove up with Walter and challenged Danny to fight. Danny and his girlfriend fled until they met up with Damien and Jeremy, at which point Picado and Walter drove away.

At about 4:00 p.m. on January 16, Danny was outside his house with his friends Jesse and Anthony Darby (Anthony). Picado rode up on his bicycle and, essentially, pulled a knife and asked who was "messing with" his brother Walter.⁴ Picado then lunged at Danny and Jesse with the knife, but they jumped out of the way. Picado rode off, and Danny and Jesse reported the matter to the police.

By around February 2001, Danny believed the animosity between him and Walter had ended. Danny suggested they should "let bygones be bygones," while Walter agreed the matter was "squashed," or done with. They shook hands. Indeed, Linda testified, about two weeks before the April 24 incident, Walter told Danny's parents that everything was "squashed." It wasn't.

2. April 24, 2001, Incident

On the afternoon of April 24, 2001, Danny's sister Crystal (aged 15), her boyfriend Jesse (aged 16), and their friend Damien (aged 17) were outside Danny's house doing yard work with rakes, brooms, and hand clippers. Picado, Walter, and Miguel Leos drove by in Picado's blue Blazer truck. Crystal heard Walter say to Picado, "There's Damien." (According to Jesse, the rumor at school was that Picado was after Damien.)

About an hour and a half later, Picado drove up again in his Blazer and parked. Picado, Walter, and a third man got out of the vehicle and approached Crystal, Jesse, and Damien. Picado said to Jesse, "What's up now, punk, I got my friends with me." The third man told Jesse and Damien they did not know who they were messing with. He promised to return with "his people," calling himself a Border Brother from 83rd. Picado and Walter added, "that's right," and nodded their heads in agreement. Walter then took a knife out of his pocket, and they surrounded Crystal, Jesse, and Damien. Crystal and Jesse picked up rocks and asked them to leave. Picado picked up rocks himself and asked Crystal and Jesse, "What are you going to do with that?" Crystal threw a rock toward Picado's Blazer. According to Crystal, the third man threatened to bring back "Border bitches" to beat her up.

Jesse recalled additional details of this encounter. The third man said "Border Brother" and Picado said "straight BB," referring to the Border Brothers as well. When Damien said they did not "gang bang here," Picado walked up to him and said, "Oh, so you got a problem with my brother or something, let's me and you handle it one on one." When Damien declined, Picado turned to Jesse and asked if he wanted to fight. Jesse replied he just wanted to do his yard work. Picado's group drove off, promising to return, and someone in Picado's car flashed the Border Brothers street gang sign.

Around 7:00 or 8:00 p.m. that day, Crystal, Damien, and Jesse were finishing their yard work. Danny's brother Jeremy and four-year-old sister Hannah were also outside the house, while Danny and his mother Linda were inside. A group of people started running toward Crystal, Damien, and Jesse: Crystal estimated the group consisted of about "seven to eleven" guys, Jesse thought there were around 15 to 20 people, including three females, and Damien believed their number was between eight and eleven. Among those in the group were Picado, Walter, Lagunas, Meza, and Navarette. Picado made the Border Brothers' gang hand sign, while others repeatedly called out the gang numbers.

Crystal, Jesse, and Damien ran toward the back yard, with Jesse pulling Hannah along on her tricycle. Jesse opened the gate to let the others in, and Damien yelled for the people in the house to call the police. But Lagunas grabbed onto Hannah's tricycle, and Hannah fell. When Linda came out of the house to help Hannah, Lagunas hit her in the face with a broomstick, grabbed Jesse, and pulled him out of the backyard. Lagunas then struck Jesse with a stick, and Jesse fell to the ground. Jesse covered his head and face while about six people, including Picado, kicked and punched him for approximately 45 seconds. Picado took a piece of an automobile locking device known as the Club, and swung it at Jesse's head. Jesse deflected the blow with his arms. Picado then threw the piece of the Club...