People v. Anaya CA3

Filed 11/21/14 P. v. Anaya CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071698

Plaintiff and Respondent, (Super. Ct. No. 10F07667)

v.

JONATHAN VELEZ ANAYA,

Defendant and Appellant.

Defendant Jonathan Velez Anaya ambushed former gang member D’Angelo Gutierrez by punching him in the face as Gutierrez left a liquor store. Defendant then participated with two other men, including his brother Joel Anaya, in beating and robbing Gutierrez. The attack was recorded by a surveillance system. Convicted of robbery (Pen. Code, § 211; all further unspecified code citations are to the Penal Code) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) with a finding that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and sentenced to 12 years in state prison (the

1

low term of two years for robbery, plus 10 years for the gang enhancement), defendant appeals. He contends: (1) the trial court abused its discretion by denying his motion to sever his trial from his brother’s; (2) the trial court abused its discretion by denying his motion for new trial; (3) the evidence was insufficient to find that the crimes were committed for the benefit of a criminal street gang; and (4) the trial court abused its discretion by denying probation and sentencing him to state prison. We affirm. BACKGROUND Crimes Against Gutierrez In the evening of October 22, 2011, D’Angelo Gutierrez went to a liquor store in Sacramento to make a purchase. As he was leaving the store, someone punched him in the face. He was punched many times by several people until he was knocked to the ground. While he was on the ground, he was punched and kicked all over the body by defendant, Joel Anaya, and another unidentified person. In all, he was kicked more than he was punched. The assailants took his shirt and shoes and left. Police officers arrived soon after the beating to find Gutierrez on the ground. He had a laceration on the back of his head; he had patterned bruises on his arm and face; and his eyes were swelling shut. Gutierrez told an officer that he had been a Norteño but had dropped out of the gang. The responding officers viewed the liquor store’s surveillance video and identified defendant as the person who punched Gutierrez in the face as he was leaving the liquor store. He and his brother Joel Anaya were apprehended soon after the beating. Defendant had a tattoo on his hand in the pattern of dots typical of a Norteño tattoo.