People v. Rivas, F049840 (Cal. App. 4/25/2007)
| Decision Date | 25 April 2007 |
| Docket Number | F049840 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER RIVAS, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Madera County, No. MCR022307A, Edward P. Moffat, Judge.
Michelle E. Guardado, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
On October 5, 2005, a second amended information was filed against appellant Christopher Rivas and codefendant Daniel Vera. Appellant was charged with count I, assault by means of force likely to produce great bodily injury on Abel Martinez (Pen. Code,1 § 245, subd. (a)(1)), and count II, criminal threats on "Jane Doe"2 (§ 422). Codefendant Vera was separately charged with count III, resisting an officer by force or violence (§ 69). Appellant and codefendant Vera were both charged with count IV, active participation in a criminal street gang (§ 186.22, subd. (a)).
As to count I, it was alleged appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)), and personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). As to counts I and II, it was further alleged appellant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); he suffered one prior serious felony conviction (§ 667, subd. (a)); and he suffered one prior strike conviction (§ 667, subds. (b)-(i)). Appellant pleaded not guilty and denied the special allegations.
At the preliminary hearing, the court dismissed the aggravated assault charge as to codefendant Vera. Vera subsequently pleaded guilty to misdemeanor resisting an officer (§ 148, subd. (a)(1)) as a lesser offense of count III, and was placed on probation for two years.
On October 5, 2005, appellant's jury trial began on counts I, II and IV; the court had bifurcated the prior conviction allegations. The court granted appellant's motion for acquittal as to the great bodily injury enhancement.
On October 6, 2005, appellant was convicted of counts I, II, and IV, and the jury found he personally used a knife in the commission of count I, and counts I and II were committed for the benefit of a criminal street gang. Appellant admitted the truth of the prior conviction allegations.
On February 10, 2006, the court sentenced appellant to an aggregate term of 14 years in state prison: as to count I, the upper term of four years, doubled to eight years as the second strike term, with consecutive terms of one year for the personal use enhancement, and five years for the gang enhancements. The court imposed concurrent second strike terms of six years for counts II and IV, with a concurrent term of five years for the gang enhancement as to count II.
On February 21, 2006, appellant filed a timely notice of appeal.
The victim owned a mini market on South C Street in Madera, and Rosendo Ramirez worked for her. Around 7:45 p.m. on July 15, 2005, the victim was standing outside the doorway talking to a customer, Abel Martinez, while Ramirez swept the sidewalk area. The victim testified that two Chicano men walked passed them and went toward a nearby liquor store. They did not say anything. The victim testified the two men walked by again, one of them said, "`We'll be back,'" and the victim replied, "`Okay.'" The victim had never seen these men before.
The victim testified the two men turned around and walked back to her store. One man was tall and thin, with a closely-shaved bald head, and she thought he had a "star" tattoo on his lip. He was not wearing a shirt. The victim thought he had tattoos on his back. The victim subsequently identified appellant Christopher Rivas as the tall and skinny man. The other man was short and heavy-set, with dark skin. He wore a hat, a dark shirt, blue Dickie pants, and had a piercing on his right eyebrow.
The victim testified she was still standing in the store's doorway with Martinez and Ramirez. Appellant and the other man approached them, and appellant stood very close to her face. Appellant spoke to the victim in English. The victim understands English, but Ramirez did not speak English and did not understand what appellant said to the victim. The victim testified appellant used a "rough" tone of voice, and said she "was not allowed to have my store there; that he was going to break the windows on my store." Appellant said, "`This is my town and you have to ask me permission to have this store here.'" Appellant said "he was going to break my windows and he was going to beat me up and throw me to the street so the ambulance will pick me up." The victim testified that when appellant made the statements to her, she intentionally acted "strong" and "didn't show him fear" so they would not think she was weak, but she was actually afraid appellant was going to beat her up. She did not see a knife.
The victim testified the short man walked up to Martinez and started talking to him, but the victim could not hear the conversation. The short man punched Martinez on the left side, and there was an altercation between them. Appellant walked toward Ramirez, and the victim ran into the store and called 911. Ramirez saw appellant slash at Martinez, and appellant also tried to "scratch" Ramirez with something in his hand.
The victim testified she stayed in the store until the police arrived, because she was shaking and thought appellant was going to beat her up. The victim testified the two men did not act normal. Martinez walked into the store, and he was bleeding from a small cut, about two to three inches long, just above the right side of his beltline.
The victim testified the entire encounter in front of the store lasted about three minutes, but it seemed like a long time to her. The victim testified she was still shaking from the encounter when the police arrived about 10 minutes later.
Madera Police Officer Josiah Arnold responded to the market and interviewed the victim, who stated the tall man told her, "`I'm going to come back here and put you in the hospital.'" Deputy Arnold interviewed Ramirez, with the victim acting as the Spanish translator. Arnold testified that Ramirez said "the tall, thin Hispanic male was carrying a pocketknife, a folding knife." Arnold clarified that Ramirez said it was a folding pocket knife.
The tall man chased Ramirez, and Ramirez ran away. Ramirez said he looked back and the heavy-set man was striking Martinez. Ramirez said the tall individual "walked behind Mr. Martinez and stabbed him in the back."
Deputy Arnold also interviewed Martinez, and observed a six-inch cut on the left side of his back, with blood dripping through two inches of the cut. The wound was about eight to 10 inches above the beltline, on the left side of his back. Arnold believed the wound was consistent with a slashing-type motion. Arnold also believed it was a serious injury and was going to call emergency personnel, but Martinez said he did not want to be seen by anyone, and he just wanted to leave and go home.
Madera Police Officer Foss contacted Officer Jason Dilbeck, the gang liaison officer, advised him about the incident, and asked if he knew about any gang member with a tattoo on his lip. Based on his past contacts, Dilbeck reported that appellant had a tattoo on his lip.
Deputy Arnold prepared a photographic lineup and separately showed it to the victim and Ramirez. Both the victim and Ramirez identified appellant as the tall suspect. At trial, the victim testified she identified appellant because he was the man who confronted her, and not because he had a tattoo on his lip.
Also at trial, Ramirez testified through a Spanish interpreter, and identified appellant as the tall man. Ramirez testified appellant spoke to the victim in English, he did not understand what was said, but appellant used an aggressive voice. Ramirez testified appellant's "companion" hit "the client," referring to Martinez (the victim's customer).
The prosecutor clarified that Ramirez "had his right hand from his left hip area across his body extending it out." Ramirez testified appellant "scratched" Martinez from behind, and Martinez was "bleeding a little."
On cross-examination, Ramirez was again asked about how Martinez was wounded:
Deputy Arnold testified he arrested appellant at his house on South D Street. Arnold advised appellant that he was under arrest for stabbing somebody in the back, and appellant replied, "`So.'" Arnold did not find a folding knife.
Detective Jason Dilbeck testified as the prosecution's gang expert. Dilbeck had been the gang liaison officer for the Madera Police Department for four years, and received training and attended seminars about gang investigations through the California District Attorney's Association, the Department of Justice, the California Gang Investigators Association, the Central Coast Gang Investigators Association, and the Northern California Gang Investigators...
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