People v. Zavala CA3

Filed 7/24/15 P. v. Zavala CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C076293

Plaintiff and Respondent, (Super. Ct. No. 13F02709)

v.

JESUS ZAVALA,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende and considered the supplemental brief submitted by defendant, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND About 1:10 a.m. on April 29, 2013, defendant Jesus Zavala and his two cohorts confronted three homeless people, Mario Franco, Joe Franklin, and Ellen Campbell, on

1

the bike trail near El Camino Avenue. Defendant, wearing a black bandana covering his face, asked Franco if he was a Sureño. Franco was wearing clothing associated with Sureños but denied being a gang member. Defendant pulled out a gun and ordered the homeless group to the ground. Defendant’s group robbed the homeless group of their belongings. In the process, defendant struck Franco in the head with the firearm. The robbers then fled. A nearby officer was immediately alerted. The officer saw two people running in one direction and defendant with his bandana on his face walking on the street. Defendant was ordered to the ground. Defendant claimed, “ ‘I be wearing this ‘cuz [sic] these Scraps be fucking with us Nortenos out here. I got to represent, you [k]now.’ ” A search of defendant revealed a green pocket knife belonging to Franco and three cell phones and a cell phone battery belonging to Franklin. A witness observed defendant throwing an item into the backyard of a home. Officers retrieved a black BB gun from the backyard. Defendant was identified in an in-field show up by Campbell and Franco who both identified defendant at trial as well. A gang expert testified about the Norteños gang’s colors, symbols, criminal activities, and incidents to show a pattern of criminal activity. He explained that “Scraps” is a derogatory term for a Sureño gang member and that the Sureños are the enemies of the Norteños. The expert opined that defendant was an active Norteño at the time of the robberies. In response to hypothetical questions that mirrored the facts of this case, the expert opined that the robbery benefited the Norteño criminal street gang. A jury convicted defendant of three counts of second degree robbery (Pen. Code, § 211) and sustained in connection with each count a gang enhancement (§ 186.22, subd. (b)(1)). The court sentenced defendant to state prison for an aggregate term of 19 years 4 months calculated as follows: count one, upper term of five years plus a consecutive 10-year term for the gang enhancement; count two, a consecutive one-third the midterm or one year for the offense plus three years four months for the enhancement; and count three, a concurrent term for the offense and enhancement. The