People v. Modesto CA4/3

Filed 11/15/13 P. v. Modesto CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047392

v. (Super. Ct. No. 12HF1105)

MIGUEL ANGEL MODESTO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed as modified. Roland G. Rubalcava for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Theodore M. Cropley and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Miguel Angel Modesto was convicted of one count of robbery for taking a bicycle with force (Pen. Code, § 2111), and one count of promoting felonious conduct by members of a street gang, a crime sometimes called street terrorism. (§ 186.22, subd. (a).)2 In this case, the street terrorism count was based on the theory he took the bicycle for the benefit of his gang, the “Family Mob.” However, in supplemental briefing the Attorney General’s office has recognized that in light of People v. Rodriguez (2012) 55 Cal.4th 1125, 1139, and the absence of any evidence Modesto acted collectively with other gang members, the street terrorism count cannot stand – the crime only applies to actions done collectively with other gang members. (Ibid.) That leaves remaining the two arguments Modesto originally raised in his opening brief as the subject of this appeal: (1) Whether there was substantial evidence Modesto used force to take the bicycle and (2) whether the trial judge’s comments during the trial evidenced judicial bias. As to the first issue, there was indeed substantial evidence of the use of force, supplied by two witnesses. The first witness was a sheriff’s deputy who actually saw the crime. The deputy testified he saw the owner of the bike straddling it as he talked to Modesto, and then saw Modesto use his left shoulder to bump the owner, causing him to (as the deputy put it) “go off the bike and off balance.” The deputy further saw Modesto “grab[] the bike by its handlebars” and then Modesto “took off” with it. The other witness was the victim himself. He testified Modesto “just grabbed