Opinion
F075385
09-17-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALONZO SANCHEZ, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR-01707A)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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After a stabbing attack on a jail inmate—and after a mistrial caused by a hung jury—defendant Jose Alonzo Sanchez was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). He had one prior strike. (§ 667, subd. (d), 1170.12, subd. (b).) For the current offense and a violation in a separate case of Vehicle Code section 2800.2, subdivision (a) (fleeing pursuing police in a vehicle with wanton disregard for safety), Sanchez received an aggregate sentence of 15 years four months.
Undesignated statutory references are to the Penal Code.
We consider two questions. First, did the trial court, during the jury's deliberations, properly relieve a holdout juror and substitute an alternate, who then voted with the other 11 to convict? The basis for this substitution was the court's finding, based on testimony of other jurors, that the holdout juror had refused to deliberate. We hold that the testimony was not sufficient to support this finding. The holdout juror explained to the court that he expected to vote to acquit because he found the victim's police statement—which the victim recanted at trial and which was the only evidence with any significant tendency to show which of his seven cellmates were involved in the attack—not to be credible. Obstinate though the holdout might have been, the other jurors' testimony did not support the proposition that he failed to deliberate before forming this opinion. He was not obliged to come around to their contrary view. We reverse on this ground.
Second, was the evidence sufficient to prove beyond a reasonable doubt that Sanchez was guilty of assault with a deadly weapon? According to the victim, Sanchez was a gang member; he was present in the cell when the stabbing happened; and, according to the victim's statement, he was in a position of authority. He was the "shot caller" for the other gang members who actually carried out the attack as Sanchez stood by. Just before the attack, the victim said, Sanchez made him do pushups, a common form of nonviolent gang discipline, until he was exhausted.
The prosecution's gang expert testified that a hypothetical stabbing attack based on the prosecution's evidence would be gang-related, and all the hypothetical gang members would be in on it together, including the one ordering the pushups, even if he did not otherwise appear to participate. Admittedly, no one testified Sanchez planned or ordered the attack. However, the gang expert identified a pattern in which forcing a member to exercise to the point of exhaustion was a prelude to a violent disciplinary attack. We conclude there was sufficient evidence to support the judgment for the reasons set forth below.
The case is remanded for retrial due to the holdout juror's erroneous dismissal.
FACTS AND PROCEDURAL HISTORY
I. The Assault
Sanchez, then 19 years old, was in a cell in the Merced county jail with seven others, including the victim Dylan B., and Sanchez's codefendants Christopher B., Roberto M., Jose V. and Peter N. All, including Sanchez, were Norteño gang members. Sanchez had a juvenile record of felony receiving stolen property (§ 496, subd. (a)), misdemeanor vandalism (§ 594, subd. (b)(2), and felony resisting an officer (§ 69). His adult record, from the year before, was being an accessory to a felony after the fact (§ 32—the appellate record does not disclose the underlying offense) and felony evading (Veh. Code, § 2800.2) with a gang enhancement (§ 186.22, subd. (b)(1)).
A correctional officer heard someone screaming for help and came to the cell. Dylan was lying on the floor bleeding, with multiple puncture wounds. Two inmates were in their bunks. Peter came over and wrung a towel out over the cell gates and the floor, rinsing away some of the blood.
Dylan survived his injuries and gave a statement to Deputy Larry Hudec while at the hospital, two days after the attack. According to him, Sanchez was the shot caller of the cell and had imposed discipline on Dylan, placing him "on freeze" for some kind of prohibited behavior. Dylan had to stay in his bunk all day while two gang members guarded him; they followed him when he went anywhere. As part of this punishment, on the day in question, Sanchez ordered Dylan to do 250 pushups with him in sets of 25. Sanchez would do 25 and then Dylan would do 25, and so on. While Dylan was doing one of his sets, he became exhausted and stopped. Then he heard someone yell, "Get that motherfucker," whereupon Jose held him down while Roberto stabbed him with a shank. While this was happening, Christopher flushed the toilet repeatedly to cover the noise. When guards were on their way, Roberto threw the shank in the toilet as Christopher continued flushing. Peter and some of the others tried to clean the blood off Roberto. Roberto's shirt was ripped off and flushed down the toilet. Dylan saw Jose holding him down, Roberto stabbing him, Christopher flushing the toilet, and Peter helping to clean blood off Roberto; but he did not know who said "Get that motherfucker," and did not see anything Sanchez might have been doing. The other two cellmates, Steven A. and Javier G., lay in their bunks and did not get involved.
Following a prior mistrial, the district attorney filed the presently operative information charging Sanchez, Christopher, Roberto, Jose and Peter with multiple offenses. Sanchez was charged with attempted murder and assault with a deadly weapon, plus gang enhancements and a prior strike (the felony evading with gang enhancement). This appeal concerns only Sanchez, but the defendants were all tried together.
The first trial ended in a mistrial on October 18, 2016. On attempted murder, the jury split nine to three in favor of convicting Christopher and eight to four in favor of convicting the other defendants. On assault with a deadly weapon, the jurors split nine to three in favor of convicting Sanchez and ten to two in favor of convicting the others. The trial court declined to relieve and replace any of the jurors.
At trial, Dylan testified he did not know any of the defendants and did not remember anything about the attack except that he was stabbed, he was a Norteño in custody at the time, and the attackers were other Norteño inmates. He also said he did not remember being interviewed by police. When the recording of his police interview was played, he denied recognizing his own voice.
The recording of the interview was admitted into evidence. It included the following statements by Dylan: Sanchez is "basically the shot caller. The one that gave me my DP." (Q: What is a DP?) "[M]y disciplinary where we have to work out for getting in trouble on some—on some things that other inmates thought I was doing wrong." (Q: What is his primary function as a shot caller?) "[H]e receives all like all the kites [i.e., written communications between inmates] and all the, um, the bad information or good information that, um, that—that basically all the bad or good information that, um, whoever goes in that cell." (Q: So basically he runs the cell?) "Yeah." (Q: And everybody listens to him?) "Yeah." (Q: He's the primary boss of the cell?) "Yes, sir." (Q: How did it work with Sanchez and the pushups?) "[O]nce he's done doing his 25 I'll do my 25. And then, you know, once I get up he'll do his and when I couldn't do them anymore, um, that's when they start stabbing me." (Dylan at one point in his time at the jail had been "partial cleared" of his gang discipline. Q: "Who told you that you were partial cleared?) "Jose." (Q. Jose Sanchez?) "Yeah." (Q. The shot caller?) "Yes, sir." (Q. So basically he tells—he says everything then?) "Yeah."
Deputy Hudec, the same deputy who interviewed Dylan at the hospital, testified he went to the jail about an hour after the attack to investigate. He spoke to and examined the seven inmates, besides Dylan, who were in the cell at the time of the attack. He also photographed them, photographed and collected their clothing, and testified about some of the clothing items and some of the photographs. Sanchez had stains the deputy suspected were blood on his shirt and shorts. Christopher had what looked like blood on his shirt. Roberto had what appeared to be blood on the top of one of his shoes. Jose also had some apparent blood on his shirt and the top and side of a shoe. The deputy did not point out any apparent blood stains on the photographs of Peter. He did see seeming blood spots on the clothing of Javier and Steven, the uncharged cellmates. The blood on Steven's shorts was the only blood the deputy described as "splatter." The items of clothing were never tested to determine whether the spots really were blood, or how old the blood was, if it was blood. Hudec conceded that without testing, he could not really know whether the stains were blood. On cross-examination, Sanchez's counsel asked Hudec to take Sanchez's t-shirt out of its evidence bag and hold it up. Hudec pointed to what counsel described as a "little streak" and said it was the blood stain. Hudec said there was "a lot more" blood there when he first saw it. Sanchez's counsel next pointed out that in the report Hudec prepared at the time he was meeting with the defendants and collecting their clothing, he wrote that Sanchez was not wearing a t-shirt. Hudec said he wrote that in error.
Hudec did not look for blood under anyone's fingernails. "I didn't get that far," he testified; "It was just myself that night, and this took several hours. And I would have been there for quite some time if I went in that detail." He did not attempt to collect any DNA samples.
At the hospital, Hudec later asked Dylan why Javier and Steven would have blood on their clothes if they had not been involved and were in their bunks, which were in a separate area of the cell. The deputy testified, "He told me they weren't involved in it, so I didn't press the issue." This part of the discussion was not included in the recorded interview presented at trial; the deputy testified he had some discussion with Dylan before he started recording. When asked whether he thought it was odd Steven would have blood splatter on him when he was in his bunk in a separate room when the stabbing happened, the deputy said yes. He speculated that Steven could have put someone else's shorts on after the attack. He suggested something similar about the blood on Javier's shorts, adding that an inmate with evidence on his clothes and expecting to be accused of something might trade clothes with another inmate who is not in similar danger.
It turned out, however, that the clothing the inmates were wearing when Deputy Hudec met with them had limited evidentiary value, as at least some of the inmates apparently had changed and some of the original clothes apparently had been soaked in water, and the crime scene had not been preserved. Deputy Kirk Lanford arrived at the scene before Hudec. The inmates had been moved. The cell door was open, the area had not been marked off with tape, and no one was guarding the walkway. A wet bedsheet and a shoe were in the walkway outside the cell. Inside the cell, there still were some streaks of blood on the floor, but the floor appeared to have been mopped or wiped. The water in the sink was running. In the shower was a bucket filled with water in which some cleansing agent had been dissolved. Soaking in the water were two pairs of shoes, two pairs of shorts, and a shirt. Lanford put these items in plastic bags and took them to a back room at his unit's office, where he laid them out for two days to dry and then stored them in evidence bags.
Correctional Officer Janet Jennings testified she came to the crime scene when she heard Dylan screaming and remained there until paramedics transported him away. When he was taken away, Jennings followed the gurney to the medical office to assist with paperwork before Dylan was taken to the hospital. Jennings was away from the cell for 15 or 20 minutes. When she returned, some other correctional officers were there, taking pictures and waiting for Hudec and Lanford to arrive. The inmates had been moved to other rooms. The cell had been cleaned up. The extensive blood spatter on the floor and cell gates was mostly gone. She did not know how or by whom this had been done.
The jury was shown a surveillance video of the hallway or walkway outside the cell, beginning at the time when Jennings responded to Dylan's screaming. It showed Dylan being tended by the nurse and then taken by the paramedics; the inmates were handcuffed and moved out of the cell to interview rooms. Toward the end of the clip shown to the jury, water can be seen splashing from the adjacent cell into the cell lately occupied by Dylan and his cellmates. Then a sheet or towel is cast from the adjacent cell onto the floor of Dylan's cell and reeled back in. The video also showed trashcans in the hallway, which inmates could reach to throw trash into from inside the cells, according to the testimony of Israel Rosales, a correctional officer who described what was happening in the surveillance video. One of the trash cans could be seen being pulled toward the adjacent cell by an inmate. Officer Rosales pointed out flashes of light coming from the adjacent cell, which he said were made by mirrors the inmates in the adjacent cell were using to try to see what the staff was doing. As far as he knew, no one ever investigated what, if anything, was put in the trash can. He testified that after the defendants and their two cellmates were moved to interview rooms, the cell door was closed and locked but no staff remained nearby.
As mentioned above, however, Officer Jennings returned after all the inmates had been moved to find there were staff members in the walkway and the cell had been cleaned up; and Deputy Lanford arrived after that and found the cell door was open, no staff were present, a wet bedsheet and a shoe were on the floor in the walkway, and the water in the cell sink was running. When Deputy Hudec arrived still later, he observed the floor had recently been mopped and was still damp. He knew Deputy Lanford would not have mopped it and he said there would not have been any opportunity for the inmates of the cell to have mopped it before they were moved. He did not know how it happened. One of the defense attorneys asked him: "So someone got in the cell and did something to it, right?" but an objection was interposed and Hudec did not answer. Counsel asked: "Did you have any information about whether other people who were housed in that area could get into each other's cells?" Hudec asked for clarification: "Did I have information?" Counsel explained: "Did you have anybody say, 'Hey, you can [j]immy this lock'?" Hudec said yes. Counsel asked another question on this line, but an objection was made and sustained. Rosales testified that when Hudec was through photographing the defendants and collecting their clothes, he (Rosales) was ordered to secure the doors of the cells on that cell block with chains and padlocks. He was asked why this would be necessary, but objections were sustained.
The questions of how the cell got cleaned before Jennings returned from the medical office, who opened the cell after Rosales locked it and Lanford arrived to find it was open with items having migrated onto the walkway and the sink left running, how the clothes and shoes came to be left to soak in a bucket of water with cleanser in the shower, and whose clothes those were, were not resolved during the trial. The record does not address the role of the inmates in the neighboring cell, who in the surveillance video appeared to be trying to meddle with the crime scene evidence and surveil the staff.
A Merced County probation officer, Alejandro Cruz, testified as the prosecution's gang expert. As part of the presentation of evidence in support of the gang enhancements, the prosecutor posed a hypothetical based on the prosecution's case and asked the expert whether the crime would have been committed for the benefit of or in association with a criminal street gang. The expert said yes; such an action would be a "removal"—an assault or killing carried out to punish a gang member in bad standing. He went on to describe the roles of each of the gang members in the hypothetical. About "gang member A"—whom the prosecutor described as the one who "orders [the victim] to start doing pushups as part of house discipline"—the expert testified as follows:
"[Expert:] . . . The person ordering or disciplinary actions [sic], he would be in charge[,] that would be his duties[,] is being in charge of discipline. Not just him, but everybody else in his household having him discipline him, that would be his role . . . .
"[Prosecutor:] If I could stop you. So you're referring to gang member A, the person that ordered the pushups. He is part of this incident; is that correct?
"[Expert:] (Nods head.)
"[Prosecutor:] And you're saying that he is holding—he's doing the set up essentially; is that right?
"[Expert:] Yes. And the reason is he's disciplinary—or giving discipline actions to the victim, since it's a plan of attack in removal. You want to get your—the—they know it's a removal. They want to get the victim tired by having him do . . . pushups, or whatever physical activity so he won't be able to fight back when the other active members act on the removal or engaging in assaults. So he would be tired and wouldn't fight back."
Later, on redirect, the expert elaborated further on his view that in this hypothetical situation, the pushups would be part of the plan to carry out the stabbing:
"[Prosecutor:] Okay. I want to—defense counsel asked you a little bit about disciplinary versus removal, which we talked about yesterday. Do you recall that:
"[Expert:] Yes.
"[Prosecutor:] So I want you to think about the hypothetical that I gave you yesterday. Based on the information I gave you, is it your opinion that that was a—was that a discipline that was taking place, or was that a removal disguised as a discipline and therefore part of the overall plan of attack?
"[Expert:] It was a removal. It was part of their plan of attack to get the victim tired, to wear him out to where he wouldn't be able to fight back [and] to get his—his—his heart rate higher. His blood will be flowing through his body. It would be easier for him to bleed out and actually die. So that's a plan of attack that they have."
The defense also called an expert witness, a former gang member from the early years of Nuestra Familia in the 1970's, who had earned a doctorate and become an author and consultant on the subject. He testified that the pushups probably were not imposed on Dylan to tire him out, since he was small and there were several gang members present who could easily overpower him, among other reasons. He also testified that an assault was one of the possible punishments for a failure to complete required exercise, suggesting the assault was a disciplinary response to the failure to finish the pushups, instead of the failure having been set up intentionally to facilitate the assault. Another point he made was that "get that motherfucker" sounded to him like something an inexperienced and overexcited gang member might say, not a more sophisticated one.
II. Jury Deliberations
On the second day of jury deliberations, the jury foreperson, juror no. 10, sent a note to the court. It stated:
"We have a juror who cannot recall any testimony given by any witness. He says he will not pay attention to any testimony, even if it's re-read by the Court Reporter. The remaining jurors have discussed the testimony given, reviewed the evidence and have reached a conclusion, but no verdict can be reached because the 1 juror is refusing to listen to the testimony again. He says he heard it but doesn't remember any of it."
The court called juror no. 10 into the courtroom and asked her to explain what happened. Juror no. 10 said juror no. 12 disbelieved the prosecution's evidence and would not explain why. During that day and the previous day, juror no. 10 said, the jurors "would all talk about [the case] and, like, kind of go around and take into consideration when we talked about each part of the evidence, [and juror no. 12] would just say[,] 'I don't believe it.'" The other jurors asked juror no. 12 to give reasons, but he gave none, saying only 'I don't believe any of it.'" Juror no. 10 challenged him:
"So fine. I asked him[,] I said, well[,] 'What about the testimony?' He goes 'I don't believe any of it.' So I asked him, 'tell me what someone testified about, anyone. Don't care who it was. Tell me what the person on the stand testified.' And he said he couldn't. So I asked him[,] '[D]id you hear it all?' He said, yeah, he heard it all. 'Then just tell me what one person said.' He said he couldn't."
The court asked whether juror no. 12 appeared to have any medical or mental problem. Juror no. 10 said the other jurors had asked him whether he "has any problems," but he said no. "There's nothing wrong with him. He just doesn't believe anything," juror no. 10 said.
The court proceeded to call in several more jurors. Juror no. 7 said juror no. 12 was "set in his opinion" but "really won't describe in very much detail why he feels the way that he does, and so it makes it hard for the rest of us to know how to proceed. . . ." He would "listen in" when the other jurors discussed the evidence, but when asked "why he has an opinion that he has he really doesn't give us any detail about why. It's just what I think." For these reasons, juror no. 7 felt juror no. 12 did not "really" participate in the jury's discussions of the evidence. The other jurors tested him to see if he could state what this or that witness had said, but juror no. 12 said he did not know. The other jurors asked him "if it would help to clarify things for him" if they had some testimony read back by the court reporter. Juror no. 12 did not say "no, don't do it," but said he had "just listened to it" and otherwise didn't "really want to respond." Juror no. 7 did not think juror no. 12 had any mental or physical health issue. The court asked, "There's something else going on?" Juror no. 7 said, "I would say so." The court asked, "So is it your understanding that this juror's not participating in deliberations and discussing the evidence and reasons for opinions that he has or conclusion[s] that he has?" The juror replied, "He doesn't go into any detail. It's just, '[T]his is what I think.'"
Juror no. 2 was called in next. Juror no. 2 said juror no. 12 "seems like he made a decision, didn't want to listen to any other conversations with us." He did not give reasons. The other jurors tried to "get him involved in a conversation," but were not successful. Juror no. 12 "just shuts down, or closes off."
The court called in juror no. 12 and told him other jurors had said he was not willing to discuss "the testimony and reasons for opinions in the deliberations." Juror no. 12 said, "I did. I already told them my opinion." They had deliberated all the previous day starting at 10:00 a.m., and continued that day until 11:30 a.m. (It was 2:03 p.m. when the court received the foreperson's note.) Juror no. 12 said he participated in the deliberations and expressed his opinions about the evidence. There had been no exchange of views since 11:30 that morning because, as juror no. 12 said, "I feel we already decided," and "[e]verybody has their own opinion."
The court next questioned juror no. 1, who described juror no. 12's behavior in deliberations as "just no committing to an answer," "just not giving facts or reasons for opinions," and "just no help there to understand where the conclusions [are] coming from." Deliberations apparently started the day before with each juror being given an opportunity to state views. "From the moment we talked, we just started to come to—everybody—whatever is agreeing to our not to agree to. And so we make sure that everybody has a voice. So as soon as that person had a voice, it was clear there was no reasoning." Juror no. 1 said "[n]ot really" when asked whether juror no. 12 "discuss[ed] his assessment of evidence or analysis of the evidence yesterday throughout the day at all." Juror no. 1 explained that the "only time when [juror no. 12] would give his input really" was the point in the beginning when "everybody got an opportunity to speak." He only gave "an opinion" about his conclusions, and no analysis of any particular witness or evidence. The other jurors explained their own positions and the reasons for them, but juror no. 12 "doesn't care what anybody says. He has his opinions, but can't reclaim [sic] any of the testimony, which that's what we're here for is to reclaim what we heard, so he's not defending his answer, pretty much, which is frustrating to everybody else because we all have our own opinions, but we can't be the use our [sic] opinions here. We have to use the facts. And we have to—if we made a decision on something, we should be able to explain it or justify our decision. And I just feel it's just not being reasonable here." Juror no. 1 did not think further deliberations would lead to a verdict because "his mind's set."
Juror no. 3 was called in, and said juror no. 12 "doesn't agree with what is going to [be] a felony crime. He will not go to that level," and he gave no reasons. The court asked if juror no. 12 had discussed the evidence. Juror no. 3 answered, "We went down very factual on identifying credibility with what the victim says versus what [the defense expert] says, identifying all the pictures. I mean, everything. We went down. We looked at all the pictures. Again, everything. And he's not willing to budge." The court asked whether juror no. 12 participated in the item-by-item discussion of the evidence. Juror no. 3: "The only comment that we get is he doesn't believe the victim's statement, but there's no reasoning on why or how come. Then we collaborate, show that, okay, what this person, the victim, stated here actually was verified by law enforcement here. These statements equal." But juror no. 12 was unpersuaded, and held to that position from the beginning. The court asked whether juror no. 12 participated in the discussion while the jury was deliberating from 10:00 a.m. to 3:30 p.m. the day before. Juror no. 3 said the other jurors referenced their notes and went through what they had heard and gradually came to a consensus among themselves; juror no. 12 listened to the conversation, but when asked his view, he continued to state that he did not believe the victim's recorded statement. He said he believed the victim's police interview was "staged."
Juror no. 4 claimed juror no. 12 said he "didn't hear who said what." The court asked for clarification, and juror no. 4 said juror no. 12 said he did not believe witnesses but had no reasons. The court observed that rejecting a witness's testimony as incredible is expressing an opinion about evidence; it is not the same as not hearing the evidence. Juror no. 4 retracted his remark about juror no. 12 not hearing and said, "He acts [as] if [he] didn't know what was going on"; further, juror no. 12 "said he didn't believe anybody basically," and was "out of it." Juror no. 12 had been saying he did not believe any witnesses from the beginning, and had even said it in the courtroom. "He thought it was a set up," said juror no. 4. "That's the word he used. When they—like when they interviewed [Dylan]."
The court asked juror no. 5 whether all the jurors were participating in deliberations. Juror no. 5 replied: "We are, except like we have enough evidence for everything that we need [except] one person, which I think was number 12. He's the one having problems with like one of the statements that they said, or like the whole entire thing. He's just judging the whole entire thing off that one thing. He doesn't want to do anything more after that."
Juror no. 6 said juror no. 12 was not participating in deliberations because "[h]e just has his mind made up." He did give a reason for his opinion: the lack of credibility of a particular witness. Juror no. 8, by contrast, said there was one juror who disagreed with the others but offered "no reasoning." When specifically asked by the court, however, juror no. 8 conceded that the one juror based his conclusion on a lack of believability of some evidence.
Defense counsel moved for a mistrial based on a hung jury. The prosecutor requested an alternate be substituted for juror no. 12. The court heard arguments of counsel and decided it would adopt one or the other of those courses, rather than asking the jury to continue trying to reach a verdict.
III. Juror Substitution
The court announced its decision the next day. It correctly observed that to relieve a juror for refusal to deliberate, the evidence before the court must amount to a "demonstrable reality" the juror refused to deliberate. (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong).) The court recognized that the reason for juror no. 12's position was that he did not believe Dylan's statement to the police. The court acknowledged the case had "some built-in problems" arising from the victim's debatable credibility, and at least implied that disbelieving his police statement could be a legitimate reason not to convict the defendants.
In surveying the other jurors' remarks, however, the court emphasized their descriptions of the fact that, having stated his conclusion and the reason for it early on, juror no. 12 had little else to say and stood firm against their arguments, an attitude they described as not participating and being unwilling to listen. Accepting that construction of juror no. 12's behavior, the court found he had "express[ed] a fixed conclusion at the beginning of deliberations and refus[ed] to consider other points of view." The court denied the motions for mistrial, released juror no. 12, and put an alternate in his place.
The next court day, the jury found Sanchez not guilty of attempted murder, found him guilty of assault with a deadly weapon, and found the gang enhancement allegation true. The court found the prior strike allegation true. The sentence was 13 years (four year upper term for assault with a deadly weapon, doubled for second strike, plus five years for the gang enhancement), plus two years four months on the Vehicle Code section 2800.2 violation in case no. 15CR-02358C.
The other defendants also were convicted of assault with a deadly weapon and acquitted of attempted murder, except for Peter, who was charged only with being an accessory after the fact (§ 32) and was convicted of that offense. Gang enhancement allegations were found true for each defendant. A great bodily injury enhancement allegation for Roberto resulted in a hung jury.
DISCUSSION
I. The Trial Court Abused its Discretion in Discharging the Holdout Juror
A. Doctrine and Standard of Review
In Armstrong, supra, 1 Cal.5th 432, our Supreme Court considered in depth the question of when it is appropriate to dismiss a juror and substitute an alternate on the ground the juror had refused to deliberate. Armstrong was a capital murder case in which the defendant was convicted of three first-degree murders with multiple murder, gang murder and drive-by murder special circumstances, plus enhancements for personal discharge of a firearm causing death; two premeditated attempted murders with firearm discharge enhancements; and six counts related to attempted witness intimidation, specifically torture with great bodily injury, robbery, burglary, assault with a firearm, and two counts of false imprisonment by violence. The jury returned death verdicts on the murders. (Id. at pp. 436-437.)
At the end of the second day of jury deliberations after the guilt phase, the court was informed the jury was deadlocked on all counts. After directing the jury to continue deliberating the next day, the court received several notes asserting that juror no. 5 was refusing to deliberate. Juror no. 5 sent the court a note saying juror no. 12 was biased. The court learned that juror no. 12 was a friend of the defendant's cousin and had failed to disclose the relationship during jury selection. It discharged juror no. 12 for implied bias and investigated the question of juror no. 5's alleged refusal to deliberate. (Armstrong, supra, 1 Cal.5th at pp. 444-445.)
The notes had indicated that juror no. 5 would not listen to other jurors' views, and said she believed the police were corrupt and she had friends who were gang members. One note said juror no. 5 was the cause of the deadlock. (Armstrong, supra, 1 Cal.5th at pp. 445-446.)
The court questioned several jurors individually. The foreperson said juror no. 5 was articulate and engaged with all the others in the beginning, but her remarks were excessively general, and when the others began to focus on specific aspects of the case she was indecisive and eventually got quiet. The foreperson said the jurors were taken aback by juror no. 5's comments about police officers' untruthfulness, but when the court asked whether she had made any statements during deliberations that indicated bias, the foreperson could not think of any. (Armstrong, supra, 1 Cal.5th at pp. 446-447.)
Juror no. 6 told the court juror no. 5 had looked at her phone or a book one or two times for a few minutes. Juror no. 5 had participated, but had come to a conclusion and was no longer listening or talking to the others. She said the police were sometimes untrustworthy, and she was acquainted with gang members and knew something about how they thought. (Armstrong, supra, 1 Cal.5th at pp. 447-448.)
Juror no. 11, having written a stern note about juror no. 5's failure to fulfill her obligation to consider all the evidence objectively, when questioned by the judge said only that juror no. 5 said she had gang member friends and believed police officers coached witnesses and manufactured crime scene evidence. (Armstrong, supra, 1 Cal.5th at p. 448.)
Juror no. 5 denied she had been reading a book during deliberations, and said she only used her phone on breaks, except that she sometimes used it to check the time during deliberations. She did not remember the court telling the jurors to turn their phones off during deliberations. She denied she had formed opinions so firm that she was unwilling to discuss the evidence, and claimed she was still engaging in discussions of the issues with the other jurors. She also denied she was biased for or against police or gangs. (Armstrong, supra, 1 Cal.5th at p. 448.)
Over defense objection and after hearing arguments of counsel, the court decided to discharge juror no. 5, finding good cause to conclude she was unable to perform her duty as a juror within the meaning of section 1089. It credited juror testimony that juror no. 5 had started out deliberating with the others, but had arrived at a fixed conclusion and would not deliberate further. It found that this conclusion was supported by jurors' remarks about juror no. 5 using her phone and reading a book, and it found juror no. 5's own remarks not credible, partly because she denied using her phone or reading a book during deliberations. After the court seated alternates for juror nos. 5 and 12, the jury deliberated for three days and found the defendant guilty as charged. (Armstrong, supra, 1 Cal.5th at pp. 449-450.)
Section 1089 provides in part:
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
The Supreme Court explained that although the standard of review for a trial court's discharge of a juror under section 1089 is labeled abuse of discretion, the reviewing court does not look merely for substantial evidence that the juror was unable to perform his or her duty, as it would under ordinary abuse of discretion review. A higher standard is required because the defendant's fundamental rights to due process, a fair trial by an unbiased jury, and a unanimous verdict are at stake. These rights would be infringed if a juror were removed just because he or she declined to conform his or her views to those of a majority voting to convict. Consequently, although the reviewing court still must refrain from reweighing the evidence, the juror's inability to perform his or her duty must appear in the record as a demonstrable reality. This means the respondent must show the trial court actually relied on record evidence that "manifestly supported" the finding that the juror could not perform his or her duty. When the juror's inability to perform takes the form of a refusal to deliberate, examples of facts that would satisfy this standard include entering deliberations with a fixed conclusion and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate himself or herself physically from the other jurors. (Armstrong, supra, 1 Cal.5th at pp. 450-451.)
The juror remarks the trial court relied on did not satisfy this standard. The other jurors did not claim juror no. 5 entered deliberations with a fixed conclusion. Instead, they said she engaged at the beginning but then developed views in conflict with the views of the others and then engaged less. This is unremarkable and there is no rule that the jurors must reach harmonious conclusions to make up their minds all at the same time. "It is not uncommon, or grounds for discharge, 'for a juror (or jurors) to come to a conclusion about the strength of a prosecution's case early in the deliberative process and then refuse to change his or her mind despite the persuasive powers of the remaining jurors.' " (Armstrong, supra, 1 Cal.5th at pp. 452-453.) The trial court relied on jurors' statements about juror no. 5's cell phone and book, but the support those statements provided to the view that juror no. 5 was not participating was insubstantial. No one said anything worse than that she looked at her phone briefly a few times. Other juror comments the trial court relied on complained of juror no. 5's lack of objectivity, inability to narrow many possibilities down to a few, indecisiveness, and particular way of looking at things. But criticisms of a juror's manner of deliberating or skill in making arguments are not grounds for finding the juror refused to deliberate. The record the court relied on did not demonstrate a reality that juror no. 5 failed to deliberate. (Id. at pp. 453-454.)
B. Analysis
This case has several points in common with Armstrong and merits the same result. Juror no. 12's refusal to deliberate does not appear in the record as a demonstrable reality. In essence, the trial court misinterpreted a firm position developed early for entering deliberations with a fixed conclusion, just as the trial court did in Armstrong. This is an ordinary case of a juror " 'com[ing] to a conclusion about the strength of a prosecution's case early in the deliberative process and then refus[ing] to change his or her mind despite the persuasive powers of the remaining jurors.' " (Armstrong, supra, 1 Cal.5th at p. 453.)
In its oral statement of reasons for its ruling as well as in its questioning of the jurors, the court focused on juror no. 12's supposed failure to specify the evidence he was not convinced by and the reasons why he was not convinced. But the record fails to support the notion juror no. 12's reasons were obscure, or even that the other jurors perceived them as obscure. It is clear enough, both from the nature of the case and from the other jurors' remarks about juror no. 12, that the weakness for him was Dylan's recorded interview. Arguably, juror no. 12 was correct to view this as the essential core of the prosecution's case, without which we would know only that Dylan was stabbed by one or more of the seven inmates in the cell with him.
Like the other jurors, juror no. 12 heard the audio recording (which is not included in the appellate record) of Dylan's statement, had access to the transcript of it, and saw and heard Dylan testify that he did not remember making it and did not remember who attacked him. If juror no. 12 simply felt Dylan did not sound truthful or credible on the recording, there would have been little else he could say to justify his credibility determination.
Other jurors appeared to believe that they did better than juror no. 12 in articulating reasons for their opposing credibility determination. Juror no. 3, for example, seemed to believe he had demonstrated to juror no. 12 that Dylan's statement was corroborated by law enforcement testimony, but, as far as the key question of which inmates did what is concerned, this is simply not so. Juror no. 5 faulted juror no. 12 for thinking nothing else the prosecution presented could save its case if Dylan's statement were rejected. Yet apart from the evidence of blood on clothes—which, even had it been meaningful, would not have been consistent with the prosecution's theory, since there was blood on the clothes attributed to Steven and Javier and none on the clothes attributed to Peter—Dylan's statement was the only evidence that could even potentially have shed any light on which of the inmates were responsible. None of the prosecution's witnesses claimed to have any way of determining which of the seven cellmates were involved, or what their roles were, independent of Dylan's statement.
It is not often, perhaps, that we have a case in which (a) an assault occurs in a locked room, (b) any one or more of the people in the room could have committed it except the victim, and (c) the assertions of one self-contradicting witness are virtually all there is to rely on for a determination of who the guilty parties are.
Dylan could have told the truth in his statement and then recanted at trial because he feared retaliation, or because he felt ashamed to snitch in open court, or because he expected the prosecution to offer him something in exchange for his testimony, and nothing was offered. Or he could have accused the wrong people deliberately in his statement because the police expressed interest in those people and implied a deal could be forthcoming if he named them, but then recanted at trial because no offer was made. Or he could have accused the wrong people deliberately for reasons of his own, and then recanted at trial due to fear or shame, or because he had a change of heart and hoped to protect both the innocent people he named and the guilty ones he did not name. In any case, juror no. 12 was entitled to make a finding on Dylan's credibility that was opposed to the findings of the other 11 jurors; and it is not clear that the other 11 did a much better job of articulating why they believed Dylan than juror no. 12 did of articulating why he did not.
The question of a deal for Dylan appears to have been complex. The subject came up in a discussion on immunity outside the presence of the jury before Dylan testified. The prosecutor mentioned nine pending prosecutions against Dylan and five more pending police reports. The prosecutor and Dylan's counsel agreed that in the pending cases, Dylan had exposure of about 32 years. The district attorney had extended an offer of six years, but then Dylan's attorney had sought to get him into drug court. The district attorney declined to dismiss any counts if Dylan were going to drug court, and the court was unwilling to suspend so many. So the question was unresolved and Dylan's cases were placed back on a pre-prelim calendar. And in any event, the six-year offer was unrelated to Dylan's testimony. When testifying, Dylan was asked whether the district attorney had promised him anything other than immunity for his testimony, and he said no. After the presentation of evidence was completed, a stipulation was read to the jury, stating that the prosecution had not made an offer of settlement to Dylan in exchange for his testimony in this case, and all offers made to him were independent of his testimony in this case. But offers of leniency, and what he might do to get them, and what to do if he did not get one, were subjects he might well have had on his mind when making his statement to police and when testifying.
This case came down to a choice between believing or not believing Dylan's statements to Deputy Hudec in the hospital two days after the attack. By the other jurors' own accounts, juror no. 12 made it clear he considered this issue to be determinative, stated his position on the issue, and proffered his reasons: Dylan did not seem honest and could be setting some of the defendants up. The fact juror no. 12 reasoned his way to this position early and was not persuaded to change it does not show he refused to deliberate. He did not accept the other jurors' contrary reasons, whatever these might have been, but the other jurors' remarks to the court did not support, in any consistent way, the claim he refused to listen to them. Our standards for deciding when a juror has refused to deliberate should not exclude the possibility that the majority may be failing to give due consideration to the opposition.
For these reasons, the record is not adequate to show, as a demonstrable reality, that juror no. 12 failed or refused to deliberate. The trial court abused its discretion in relieving juror no. 12 and substituting an alternate.
II. The Evidence Sanchez Aided and Abetted the Assault was Sufficient to Support his Conviction
Sanchez argues the evidence presented at trial was insufficient to prove he participated in the assault with a deadly weapon upon Dylan. Although the evidence is capable of different interpretations, we conclude there is sufficient evidence to support the judgment.
When considering a challenge to the sufficiency of the evidence to support a judgment in a criminal case, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
Although this standard is deferential, it is not true that we should uphold a conviction just because it is supported by some evidence "which taken in isolation might appear substantial," even if it does not appear so in the context of the record as a whole. (People v. Johnson (1980) 26 Cal.3d 557, 577 (Johnson.) Our Supreme Court has cautioned against misinterpreting the substantial evidence standard in this way:
"As Chief Justice Traynor explained, the 'seemingly sensible' substantial evidence rule may be distorted in this fashion, to take 'some strange twists.' 'Occasionally,' he observes, 'an appellate court affirms the trier of fact on isolated evidence torn from the context of the whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably believe the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. Had the appellate court examined the whole record, it might have found that a reasonable trier of fact could not have made the finding in issue. One of the very purposes of review is to uncover just such irrational findings and thus preclude the risk of affirming a finding that should be disaffirmed as a
matter of law.' (Traynor, The Riddle of Harmless Error (1969) p. 27.) (Fns. omitted.)" (Johnson, supra, 26 Cal.3d at pp. 577-578.)
On May 6, 2019, the court sent a letter to the parties in pertinent part asking the following:
"Was sufficient evidence presented at trial to prove appellant committed assault with a deadly weapon (Pen. Code, § 245, subd. (a))? Specifically, what evidence was relevant to the question of whether appellant aided and abetted the attack on the victim, and could a reasonable factfinder find that evidence proved appellant's guilt beyond a reasonable doubt?"
Sanchez did not initially claim insufficient evidence as a ground for reversal; the parties briefed the issue at the court's request. Sanchez contends the lack of specific evidence he ordered the assault, together with the expert testimony regarding gang activity, was insufficient to support the judgment.
Respondent submits that substantial evidence supports Sanchez's conviction for assault with a deadly weapon. The relationship between Sanchez and the other criminal participants, the apparent preplanning of the attack, Sanchez's conduct, training and activities with his co-participants before the attack, his participation in the attack plan, his continued presence at the scene during the attack, and his failure to stop the attack, support the jury's conclusion Sanchez knew of and shared the criminal intent to assault Dylan with a deadly weapon. He aided, promoted, and encouraged the commission of the assault; therefore, a reasonable factfinder could find Sanchez guilty beyond a reasonable doubt.
A. Relevant Legal Principles
1. Standard of review
The appellate court's role in reviewing the sufficiency of the evidence is limited. (People v. Smith (2005) 37 Cal.4th 733, 738; see In re Michael G. (2012) 203 Cal.App.4th 580, 589 ["The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts"].)
As stated by the California Supreme Court, in assessing sufficiency of the evidence to support a conviction, this court:
"review[s] the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict - i.e., evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]. . . We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict."(People v. Zamudio (2008) 43 Cal.4th 327, 357, first italics in original, later italics added; see People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213; People v. Edwards (2013) 57 Cal.4th 658, 715.) " ' "If the circumstances reasonably justify the [jury's] findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)
" ' "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' "(People v. Tully (2012) 54 Cal.4th 952, 1006-1007.)
When "there are two possible grounds for the jury's verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground." (People v. Guiton (1993) 4 Cal.4th 1116, 1127.)
2. Aiding and abetting
"Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator." (People v. Prettyman (1996) 14 Cal.4th 248, 259; § 31 ["All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed"].) "[A]n aider and abettor is a person who, 'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (Prettyman, at p. 259.)
"[A]n aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' " (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) In this case, the trial court instructed the jury regarding intended crimes, but not the natural and probable consequences doctrine (see CALCRIM No. 402). (See McCoy, at p. 1117.)
"Factors to be considered by the trier of fact in determining 'whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.' " (People v. Garcia (2008) 168 Cal.App.4th 261, 273 (Garcia).) " 'Whether [a] defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
B. A Reasonable Trier of Fact Could Find Sanchez Guilty Beyond a Reasonable Doubt
There was sufficient evidence Sanchez committed assault with a deadly weapon. From the testimony describing the incident, a jury could reasonably conclude that Sanchez and the other perpetrators launched a coordinated attack with the shared intent to assault the victim with a deadly weapon.
1. Relevant facts established at trial about the Norteño Gang
This was based almost entirely on the testimony of the prosecution's gang expert, Officer Alejandro Cruz.
Norteño gangs have "rules" that must be followed. All Norteños are taught these rules. They communicate with each other about members who have violated the rules.
New arrivals into a Norteño cellblock are guarded and questioned by Norteño members; a process is used to determine if the new arrivals are Norteños in good standing. The process includes written questions ("kite or wila") for the new arrival to answer. Failure to follow Norteño rules can result in discipline, including physical punishment like doing pushups, sit-ups, and burpees. Some rules violations will put a member in bad standing with the gang. In the jail setting, for those ultimately determined to be in bad standing with the gang or otherwise a serious problem, a "removal" will take place. The gang could assault or even kill that member because he would be considered an enemy. That member will be removed from the gang at any cost.
Norteños are trained on how to remove a member in bad standing. "Removals are preplanned." "It's called 'plan of attack.' " Norteño training includes learning how to make a shank and knowing the vital areas of the anatomy. That knowledge assists them should they need to kill someone or remove a member. In the plan of attack for removal, every member has a "specific role or duty that [he performs] . . . to remove that individual . . . ." For example, in the jail one of the members usually repeatedly flushes the toilet to drown out the sounds of the victim's cries for help during the attack.
2. Assault with a deadly weapon
Here, the evidence showed Dylan, the victim, was a Norteño gang member. As such, in February 2016, when he arrived at the Merced jail, he was housed in a jail cellblock with other Norteño gang members including Sanchez, Jose, Roberto, Peter and Christopher.
According to Dylan, Sanchez was the cellblock's shot caller. Accordingly, he received all the information on the new arrivals. He was the one who "run[s] the cell" and was the "boss." Other Norteño members had to do what Sanchez said.
Dylan had violated a gang rule. He was initially put on "freeze" in the cell, where his movements were restricted and he was closely guarded by other Norteño inmates. Then, despite Sanchez telling Dylan that he was partially cleared of his discipline, Sanchez directed him to do 250 push-ups, in sets of 25. When Dylan could not do anymore, he heard someone say, ' "Get the motherfucker.' " He was then attacked as part of a removal.
Roberto stabbed Dylan multiple times with a shank while Jose held him down. Christopher kept flushing the toilet to help mask the noise of the attack. Dylan was stabbed in the chin, corner of his mouth, back, chest, shoulder and the top of his head. Inmates in other cells called out "keys," a warning correctional officers were coming, and the attack finally stopped. Roberto threw the shank in the toilet and Christopher flushed it down. Roberto and Peter tried to clean blood from Roberto's hands with a sweatshirt or towel that possibly had bleach on it. They ripped Roberto's shirt and threw it down the toilet.
High ranking members may not participate in the attack as they would have someone else carry it out.
After the attack, Peter walked over with a wet towel and wrung "water [out of it] over the blood and just kind of wash[ed] it away." He did not stop until Correctional Officer Israel Rosales drew his Taser and directed him to step back.
When the cell was photographed, it appeared someone had continued cleaning the floor. A wet towel was recovered just outside the open cell door; and a bucket containing water and a cleaning agent was recovered from the shower. Submerged in the bucket were articles of clothing and a towel. The water in the sink was running.
Sanchez and the other assailants were photographed. Sanchez's T-shirt and cut offs had suspected blood on them.
After being provided a hypothetical with facts that mirrored the facts in this case, the gang expert, Officer Cruz, opined that the person ordering the pushups was in charge of the gang discipline and his role was to set up the attack by ordering the victim to do pushups to tire him before the attack so he could not fight back. The exercise also served to elevate the victim's heartrate so he would more easily "bleed out" and die. Each gang member in association with the others had his specified role in the attack, including holding the victim, knifing the victim, flushing the toilet, and cleaning up. The attack was for the purpose of removing a gang member in bad standing. It benefited the gang by removing the "enemy," enhancing the participants' respect within the gang, and sending a message to other gang members that they must follow the gang rules or this would happen to them.
A one-hour five-minute video camera recording of the cell block was played for the jury. (5 RT 1252-1257; 6 RT 1262-1269; People's Exh. No. 343.)
The relationship between Sanchez, the Norteño cellblock shot caller, and the other criminal participants (Norteño gang members), his conduct and activities with them before the attack (e.g., wearing down the victim to make him defenseless), his continued presence at the scene during the attack (as evidenced by the apparent blood on his own clothes), and his failure to stop the attack, support the jury's conclusion Sanchez knew of and shared the criminal intent to assault Dylan with a deadly weapon, and aided, promoted, and encouraged the commission of the assault. (See Garcia, supra, 168 Cal.App.4th at p. 273 ["Factors to be considered by the trier of fact in determining 'whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.' "]; In re Juan G. (2003) 112 Cal.App.4th 1, 5 [presence at crime scene with companions supports aiding and abetting].)
Thus, as shown above, based on the evidence viewed in the light most favorable to the judgment, Sanchez's actions, and the reasonable inferences therefrom, justify the verdict. (See In re V.V. (2011) 51 Cal.4th 1020, 1026 [if the evidence "reasonably justif[ies] the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment"].)
DISPOSITION
The judgment is reversed and remanded for further proceedings.
We incidentally note that the abstract of judgment erroneously attributes a five-year enhancement pursuant to section 667, subdivision (d), when it should show that enhancement under section 186.22, subdivision (b)(1)(B), attached to the section 245, subdivision (a)(1) conviction. The total time imposed is correct.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.