P. v. Mendez CA4/3

Filed 4/11/13 P. v. Mendez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G046167

v. (Super. Ct. No. 11WF0570)

JOSE VICTOR MENDEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of aggravated assault, making a criminal threat, possessing a weapon on school grounds and actively participating in a criminal street gang, aka street terrorism. The jury also found to be true enhancement allegations appellant used a knife and acted for the benefit of a gang. We hold there is sufficient evidence to uphold the gang enhancement. However, because appellant acted alone in committing his crimes, his conviction for street terrorism must be reversed. In all other respects, we affirm the judgment. FACTS Appellant is a self-professed member of West Trece, a Hispanic criminal street gang that claims territory in Westminster. He is also the “honorary uncle” of a West Trece member known as “Little Penguin.” Appellant and Little Penguin frequented a house located in West Trece territory. The victim in this case, Manuel Reyes, rented a room at the house but was not a gang member. He was aware, however, that appellant was affiliated with West Trece. On March 8, 2011, a dispute arose at the house when the landlady accused Little Penguin of stealing something from her. The accusation escalated into a fight between Little Penguin and the landlady‟s 15 year-old son. Reyes intervened by punching Little Penguin. Little Penguin pulled a knife, prompting Reyes to back away. At that point, Little Penguin retreated as well and the confrontation ended. The next morning, Reyes was approached on the street by appellant, who was riding a small bike. Appellant pulled out a knife and chased Reyes. Appellant told him, “You beat up my little homie so now you‟re gonna get yours.” He also threatened to “stick” Reyes and to kill him. Appellant came within five feet of Reyes but never touched him. The chase ended abruptly on the grounds of Johnson Middle School when a counselor yelled out the police were coming. Upon hearing this, appellant warned Reyes, “Don‟t worry, I‟m gonna come back and I‟m gonna get you.” He then fled the area.