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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

MIGUEL ANGEL MODESTO,

 Defendant and Appellant.

 G047392

 (Super. Ct. No. 12HF1105)

 O P I N I O N

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.

* * *
2

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 

 

 

1

Penal Code section 211 provides: “Robbery is the felonious taking of personal property in the 

possession of another, from his person or immediate presence, and against his will, accomplished by means of force 

or fear.”

All further statutory references are to the Penal Code. 

 

2

Section 186.22, subdivision (a) provides: “Any person who actively participates in any criminal 

street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and 

who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be 

punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison 

for 16 months, or two or three years.”

Modesto received a 12-year sentence for the robbery count, with the street terrorism count stayed 

under People v. Mesa (2012) 54 Cal.4th 191.
3

hold” of the bike by the handlebars and “took it” after he had told Modesto he needed the 

bicycle for work.

Modesto’s argument for the lack of substantial evidence is largely based on 

discrepancies confined to the victim’s statements. At trial the victim said Modesto made 

no physical contact with him in the course of grabbing the bike, while another deputy 

testified the victim told him, after the incident, that Modesto had bumped his shoulder in 

the process of grabbing the bicycle away. As Modesto frames the issue in this appeal, the 

victim had to be lying at some point, ergo there was no substantial evidence of the force 

or fear necessary to commit robbery. (See § 211 [defining robbery as a taking against an 

owner’s will by “force or fear”].)

The argument is a non sequitur. A trier of fact is free to believe all or part 

of a witness’s testimony. (E.g., People v. Maxwell (1979) 94 Cal.App.3d 562, 576 [“‘The 

jury might have rejected all her testimony had they seen fit, in view of her admitted 

contradictions, but they were not bound to do so. Such “testimony is still evidence in the 

case which they must receive and weigh. While they may reject it, they may, as they 

determine, accept as true one of the contradictory asseverations.”’”]; Pierson v. Superior 

Court (1970) 8 Cal.App.3d 510, 517-519 [rejecting argument that sole prosecution 

witness at preliminary hearing was so impeached by his testimony at two previous 

preliminary hearings that the trial court could not “rely” on the witness’s “present 

testimony”]; People v. Ross (1941) 46 Cal.App.2d 385, 396-397 [in case of prosecution 

of two brothers, observing that jury knew witness “had been impeached” and knew “they 

had a right to reject his testimony entirely,” but even so the question of the witness’s 

“credibility and of the weight to be given to his testimony were to be determined solely 

by the jury”]; People v. Holman (1945) 72 Cal.App.2d 75, 89-90 [holding jury could still 

rely on parts of testimony of witness which was otherwise “self-contradictory”].) 

In this case, any discrepancy in the victim’s statements is readily 

explainable by Modesto’s gang connection. This victim was clearly reluctant to testify 
4

against a gang member. At the sentencing hearing the trial judge specifically remarked 

the witness “was terrified” of Modesto because “he knew you were a gang member.”

And so it is quite understandable that the victim was reluctant in open court to give voice 

to the bumping which the deputy saw. But that reluctance hardly required the jury to 

disbelieve the testimony of the deputy, much less the victim’s own previous statement to 

another deputy.

The second argument is entirely based on fragments of the trial court’s 

remarks taken out of context. Modesto’s opening brief first quotes the judge telling 

Modesto’s defense attorney that she was “repeating herself” in her closing argument, as if 

the judge were being peevish and gratuitously cutting counsel off from the full 

development of her argument. The opening brief omits what immediately preceded the 

“repeating yourself” comment – namely defense counsel’s own question to the judge as 

the noon recess was approaching: “Do you want me to keep going?” The judge 

answered: “Well, how much more time do you need? You’re repeating yourself at this 

point.” In context, the judge was simply responding to defense counsel’s question. 

Modesto’s other claims of prejudice by the trial judge all come from the 

sentencing hearing. The essential thrust of these was that Modesto had not acted wisely 

in rejecting what had apparently been a very favorable plea deal.3 In context, all these 

comments, like the “repeating yourself” comment just discussed, were made in response 

to arguments being presented at the hearing to the effect the court should go easy on 

Modesto because he was 19 years old. The overall point the judge was making was that 

Modesto was an experienced gang member, that his crimes were becoming progressively 

worse, and he thus posed a danger to the community. Even the judge’s “Congratulations” 

 

 

3 The four excerpts are: (1) a characterization of Modesto’s defense as “cockamamy”; (2) a 

statement to Modesto that he was “not a child”; (3) noting the jury took less time to deliberate than Modesto’s 

counsel had spent in closing argument; (4) telling Modesto “no one is ever going to credit you with intelligence and 

sound judgment,” because you rejected a prior offer before going to trial; and (5) a comment, unquestionably 

partially sarcastic, that “if you come to court again, you’re looking at 25 years to life. Congratulations.”
5

sarcasm was made in the context of explaining to an errant young man that he faced 

much worse by way of punishment in the future if he didn’t mend his ways.4 We have 

not seen much evidence this “tough love” approach is especially effective, but neither can 

a tough sentencing speech support reversal.

Rather than burden the trial court with the task of striking the street 

terrorism count under Rodriguez, we do so ourselves and hereby modify the judgment to 

strike the section 186.22, subdivision (a) street terrorism count, and direct the clerk of the 

trial court to prepare an amended abstract of judgment reflecting this modification and 

send a certified copy to the Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.

 

 

4 When read as a whole, the judge’s statements show far more concern and solicitude than derision. 

The “Congratulations” comment was in the midst of trying to get the point across that if Modesto commits any more 

crimes he is looking at his third strike: “And your crimes are getting worse and worse and they’re going to effect 

you more and more negatively. Because now you’ve got enough strikes so that if you come to court again, you’re 

looking at 25 years to life. Congratulations. Or more. And a judge is going to be hard-pressed to find a reason not 

to give you a maximum sentence, particularly if you continue with this gang thing.”