People v. Lorenzo CA2/6

Filed 3/18/15 P. v. Lorenzo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B255110 (Super. Ct. No. 2012036098) Plaintiff and Respondent, (Ventura County)

v.

JOSE LORENZO,

Defendant and Appellant.

Jose Lorenzo appeals after a jury convicted him of street terrorism (Pen. Code,1 § 186.22, subd. (a)), second degree robbery (§ 211), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true allegations that all three offenses were hate crimes (§ 422.75, subd. (b)), and that the robbery and assault were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). In a bifurcated proceeding, appellant admitted he had a prior serious felony conviction that qualified as a strike (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)). The trial court sentenced him to a total term of 26 years in state prison. On October 8, 2012, Derek Allen was living at a campsite in the river bottom in Ventura. At about 1:00 a.m., he was riding his beach cruiser bicycle to the campsite when a group of five or six Hispanic males whistled at him. The men

1 All further statutory references are to the Penal Code.

surrounded Allen and he asked, "What's up?" One of the men responded, "It's hate nigger day." Allen, who is African-American, got off his bicycle and laid it on the ground along with a cooler he was carrying. As soon as he did so, the men started swinging at him but did not hit him. Allen returned to his bicycle and one of the men said, "Nice bike." Allen replied, "You ain't taking my bike." The men then "bombarded [him] with rocks[.]" One of the men, who was dressed in dark clothing and wearing a black baseball cap, pulled a gun from his waistband. Another one of the men took Allen's bicycle and rode away on it. When Allen tried to retrieve his cooler, one of the men picked it up and threw it at his head. Allen stepped back to avoid being hit. He walked away and called 911. Ventura Police Officer Greg Knupp responded to the call. Officer Knupp was approaching the area where the incident occurred when he saw someone riding a beach cruiser bicycle. The rider appeared to see the officer and sped away. Officer Knupp then saw appellant, who matched the description of the suspects, walking up the street. The officer got out of his patrol car, drew his gun and ordered appellant to get on the ground with his hands in front of him. Appellant complied. After detaining appellant, Officer Knupp found a flashlight-style stun gun on the grass near the scene of the incident. While other officers pursued the suspects, Officer Gilbert Pusen met Allen in front of a nearby store and took his statement. Allen identified appellant during an in- field showup as the man who pulled out a gun and took his bicycle. Allen also said that appellant had thrown a rock at his head. Allen told the officer that all of the men had said, "Fuck niggers, Avenue Gangsters," "[t]his is our shit," and "What you gonna do, nigger, Avenue." Six days later, appellant saw a man he had never seen before riding his bicycle. The man gave the bicycle to Allen after he confronted him. Two weeks after the incident, Allen identified Jose Contreras from a photographic lineup as the man who had thrown a rock and pulled a gun on him. The following January, appellant identified Contreras from a lineup. When questioned at