Filed 3/21/13 P. v. Guzman CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CHRISTIAN GUZMAN et al., 

 Defendants and Appellants. 

 B239850 

 (Los Angeles County 

 Super. Ct. No. TA117370) 

 APPEALS from judgments of the Superior Court of Los Angeles County, Patrick 

Connolly, Judge. Affirmed. 

 Katharine Eileen Greenebaum, under Appointment by the Court of Appeal, for 

Defendant and Appellant, Christian Guzman. 

 Kevin D. Sheehy, under Appointment by the Court of Appeal, for Defendant and 

Appellant, Agustine Edgar Cuevas. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and 

William N. Frank, Deputy Attorneys General, for Respondent. 

___________________________ 
2

 Christian Guzman and Agustine Edgar Cuevas appeal from the judgments entered 

after a jury convicted them of assault with a firearm and other crimes committed for the 

benefit of a criminal street gang. We remand to correct a sentencing error conceded by 

the Attorney General, but otherwise affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND 

 1. The Information 

 Guzman was charged by amended information with making a criminal threat (Pen. 

Code, § 422) (count 1),

2

 carrying a concealed firearm (§ 12025, subd. (a)(2)) (count 2) 

and assault with a firearm (§ 245, subd. (a)(2)) (count 4) with special allegations the 

crimes had been committed for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)(A) & (b)(1)(C)) and he had personally used a firearm in committing the offenses 

charged in counts 1 and 4 (§ 12022.5, subd. (a)). Cuevas was charged with making a 

criminal threat (count 1), the unlawful driving or taking of a vehicle (Veh. Code, 

§ 10851, subd. (a)) (count 3) and assault with a firearm (count 4) with special allegations 

the crimes had been committed for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)(A) & (b)(1)(C)) and a principal had been armed with a firearm in connection with 

counts 1 and 4 (§ 12022, subd. (a)(1)). Guzman and Cuevas pleaded not guilty. 

2. Summary of the Evidence Presented at Trial 

 a. The People’s evidence 

 Luis Estrada was collecting admission fees at a party in Watts after midnight on 

March 26, 2011 when Guzman, Cuevas and three other men approached. Estrada 

testified, after he had repeatedly refused Guzman’s demand his group be admitted free, 

Guzman said, “Let us in or I’m going to shoot you.” Estrada felt something cold and 

 1 In addition to the sentencing error discussed in our opinion, the Attorney General 

acknowledges the minute order entered following Guzman’s and Cuevas’s convictions 

and the abstracts of judgment should be corrected to state the statutory basis for the fiveyear criminal street gang enhancement is Penal Code section 186.22, subdivision 

(b)(1)(B), not (b)(1)(C). 

2 Statutory references are to the Penal Code unless otherwise indicated. 
3

metallic pressed against his stomach. Cuevas, who was standing inches behind Guzman, 

said, “Step aside if you don’t want to get shot.” During the confrontation Estrada heard 

someone say the group would not pay because “this is our hood,”

3

 and announce a gang 

name “South Side Watts.” The group then pushed Estrada aside and barged into the 

party. Estrada told the disc jockey to stop the party because he did not want anyone to 

get hurt. As people began to leave, Estrada saw a white truck, driven by Cuevas, 

spinning its tires before driving off.

4

 Justin Mancillas was standing about 10 feet away from Estrada when he saw 

Guzman “had [Estrada] against the fence.” Guzman and the four men with him appeared 

to Mancillas to be gang members: They wore baggy clothes, and one had tattoos. 

Mancillas initially denied he had told friends and officers who responded to the scene that 

Guzman had a gun. Upon further questioning on direct examination, Mancillas 

acknowledged he had testified at the preliminary hearing he saw Guzman point a black 

gun at Estrada and explained he was afraid to testify at trial. Mancillas then testified he 

did see Guzman pointing a gun toward Estrada’s stomach “from the side angle.” 

However, during cross-examination by Cuevas’s counsel Mancillas clarified he did not 

actually see the gun. Rather, he saw Guzman first reach his right hand to his waist band 

and then raise his arm toward the front of his body; Mancillas assumed, and Estrada told 

him, Guzman had a gun. Mancillas told his friend to call the police. 

 3 Estrada initially testified he did not know who made this comment, but later 

testified it was Guzman. 

4 We deny Cuevas’s request to take judicial notice of information in an ABC news 

story and Wikipedia about the effect of nitrous oxide, which some witnesses testified 

Estrada had been using despite his denial. Even if the information is properly subject to 

judicial notice (see Evid. Code, § 452, subd. (h) [“facts and propositions that are not 

reasonably subject to dispute and . . . capable of immediate and accurate determination by 

resort to sources of reasonably indisputable accuracy”]) and bears directly on Estrada’s 

credibility, as Cuevas contends, “‘it is the exclusive province of the trial judge or jury to 

determine the credibility of a witness and the truth of falsity of the facts upon which a 

determination depends.’” (People v. Elliott (2012) 53 Cal.4th 535, 585.) 
4

 Los Angeles Police Officer Mario Leonidas testified he saw a white truck spinning 

its tires when he and his partner arrived at the scene. Estrada and Mancillas flagged 

down Leonidas, telling him, “Those two guys in the car pointed guns at us.” Leonidas 

pursued the white truck, which had driven away. After detaining Cuevas, who was 

driving, and the passenger, Yony Lima, Leonidas returned to the scene and located 

Mancillas. Mancillas then identified Guzman, who was leaning on an SUV parked in a 

driveway, as the assailant with the gun. Leonidas saw Guzman place a revolver between 

the tire and wheel well as he was looking at him. Leonidas and another officer 

immediately approached, recovered a blue steel revolver loaded with five rounds of 

ammunition and detained Guzman. Six more rounds of ammunition were recovered from 

the floorboard of the white truck Cuevas had been driving. 

 Los Angeles County Sheriff’s Deputy Chris Mezzano, testifying as a gang expert, 

explained he was assigned to a gang unit that monitors the Florencia 13 criminal street 

gang, one of the largest gangs in Los Angeles County. The gang has numerous rivals, 

including the South Side Watts,

5

 which claims as its territory the area where the party 

occurred. Mezzano opined Guzman was a member of the “Termite” clique of Florencia 

13 based on several facts, including that he had “F-13” tattooed on his left wrist and “Los 

Termites” tattooed on his neck, had been served with a criminal street gang injunction 

issued against members of Florencia 13, and had been arrested twice with another 

Florencia 13 gang member. Mezzano testified he believed Cuevas was an Florencia 13 

gang member based on the “SC” tattoo on his arm, which, although not necessarily 

related to a gang, is a common tattoo for members of Florencia 13, and his association 

with other Florencia 13 gang members, including Juan Lozano, one of the people who 

had confronted Estrada.

6

 Mezzano opined Guzman and Cuevas had committed their 

 

5 “South Side” denotes Hispanic gangs. 

6 “SC” denotes the South Central area of Los Angeles. Lozano, who was also 

served with the criminal street gang injunction against Florencia 13 members, had F-13 

tattooed on his chest and SC on his wrist. 
5

crimes to benefit the Florencia 13 gang: By going to a party as a group in South Side 

Watts territory and threatening the doorman after he refused to let them in free, they were 

sending a message that Florencia 13 was to be feared, permitting its members to do what 

they want. By threatening to shoot the doorman, they were enhancing their individual 

reputations in the gang. Additionally, by concealing a firearm, they were making the 

firearm available to any gang member who may want to use it should the need arise. 

 Acknowledging the only gang name announced was South Side Watts, not 

Florencia 13, Mezzano conceded on cross-examination gang members would not shout 

out a rival gang name in order to gain notoriety for their own gang. Nonetheless, 

minimizing the significance of the apparent contradiction, Mezzano explained, “When 

they commit crimes, they don’t want to be directly associated with the crime. . . . So it’s 

not uncommon and it does happen. And I’ve investigated cases where oftentimes gang 

members will shout out a rival gang’s name after they commit a crime because they don’t 

want the attention to come right back on them.”

7

 Mezzano further explained, “[P]eople at 

that party or wherever that’s occurring, [for] the most part, have an idea who they are. I 

mean, the fact that they yell out a rival’s name doesn’t necessarily mean they’re not 

trying to put their gang out there, they’re not putting in work for the gang. It actually 

helps them amongst each other, it gives them bragging rights, look what we did for 

Florencia, you know, them going out there [committing violent crimes] together.” 

 b. The defense evidence 

Guzman admitted he is a member of the Termite clique of the Florencia 13 gang 

and the gun and bullets recovered were his. He testified he went to the party with some 

 7 Los Angeles Police Detective Patrick Flaherty, one of the investigating officers, 

testified primarily about the white truck Cuevas had been driving. During crossexamination and on redirect, however, Flaherty, who was then assigned to a gang impact 

team, was asked about Florencia 13 and gang member behavior generally. Flaherty 

testified it would be unlikely a Florencia 13 gang member would go into another gang’s 

territory and claim a different gang. But, he added, “in the past, throughout some of my 

investigations, there have been times where gangsters will pose as their rival gangsters to 

get in to do shootings, and that’s happened on a number of occasions that I can 

remember.” 
6

friends to have a good time, and his brother dropped him off. While he was waiting in 

line, Guzman heard people in front of him say they would not pay to get into a party in 

their “hood,” “South Side Watts.” He knew they were members of a rival gang, but he 

could not leave because his brother had left; so he walked in behind the rival gang 

members without paying. Realizing he was “in the wrong place,” Guzman called his 

brother to pick him up. While he was waiting outside, Guzman saw Lima, who he knew 

was a fellow Florencia 13 gang member, in the white truck. Lima agreed to give Guzman 

a ride. However, before they drove away, Guzman’s brother arrived. Guzman got out of 

the truck, leaving behind bullets he had taken out of his pocket. Guzman then saw the 

police, panicked and put the gun in the wheel well of the SUV. Guzman testified he 

would not claim “South Side Watts” because “it’s not even my hood” and he “could get 

beaten up or even killed” if his fellow gang members ever found out he was doing that. 

 Cuevas testified his girlfriend called, asking him to pick her up from the party 

after midnight. She sounded afraid and said people were fighting. Cuevas called Lima, 

an old friend and a Florencia 13 gang member, to accompany him because he felt more 

comfortable with him there. Cuevas borrowed the white truck and left Lima in it while 

he got into line. Suddenly, “everybody just burst into the party,” and Cuevas followed. 

After the music stopped, Cuevas went outside where he saw Guzman talking to Lima. 

Cuevas claimed he did not know Guzman. As Lima asked Cuevas if they could give 

Guzman a ride, Guzman’s brother arrived; and Guzman left. For “fun,” Cuevas decided 

to “show off and burn . . . my tires” after seeing other cars do the same. Police officers 

pulled over the truck shortly thereafter. Cuevas denied he was a member of a gang and 

insisted he got his “SC” tattoo because he was a fan of USC football. 

 Lima admitted he is a member of the Malditos clique of Florencia 13. He testified 

he and Cuevas had been best friends since high school but Cuevas was not a member of 

the gang. Lima’s description of his and Cuevas’s presence at the scene was largely 

consistent with Cuevas’s. 
7

3. The Trial Court’s Ruling No Instruction on Simple Assault Was Warranted 

 After informing counsel it would instruct the jury on assault with a firearm, the 

trial court indicated it did not intend to instruct on the lesser included offense of simple 

assault because the defendants’ theory of the case was “the witnesses in this matter were 

confused as to who they saw complete this action or do whatever was done out 

there . . . .” Defense counsel confirmed the court’s understanding. The court ruled, “So 

under [People v. Breverman (1998) 19 Cal.4th 142 (Breverman)], I think that they’re 

either going to find it was an assault that was done [by] one or both of the defendants, or 

it’s nothing at all, or its going to be not guilty. So I think under Breverman, I don’t 

believe that it would be appropriate to give a misdemeanor instruction of simple assault.” 

Defense counsel did not object. 

 4. The Jury’s Verdict and Sentencing

 The jury found both Guzman and Cuevas guilty on all counts and found true the 

special allegations. The trial court sentenced Guzman to an aggregate state prison term 

of 17 years, comprised of the low term of two years for assault with a firearm plus the 

high term of 10 years for the firearm enhancement plus five years for the criminal street 

gang enhancement. Sentence for making a criminal threat and carrying a concealed 

firearm was imposed and stayed pursuant to section 654. The court sentenced Cuevas to 

an aggregate state prison term of eight years eight months, comprised of the low term of 

two years for assault with a firearm plus one year for the firearm enhancement, plus eight 

months for the unlawful taking of a vehicle, plus five years for the gang enhancement. 

Sentence for making a criminal threat was imposed and stayed pursuant to section 654. 

CONTENTIONS 

Cuevas contends the trial court committed prejudicial error by failing to instruct 

the jury on assault as a lesser included offense of assault with a firearm and the firearm 

enhancement should be stricken as unauthorized. Guzman contends there was 

insufficient evidence the crimes were committed for the benefit of a criminal street gang. 
8

DISCUSSION 

1. The Decision Not To Instruct on Simple Assault Was Not Prejudicial Error 

 The trial court in a criminal case has a duty to instruct on general principles of law 

applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 

32 Cal.4th 73, 115.) This obligation includes the duty to instruct on a lesser included 

offense if the evidence raises a question whether the elements of the lesser included 

offense, but not the greater offense, are present. (Ibid.; Breverman, supra, 19 Cal.4th at 

p. 154.) The duty “arises even against the defendant’s wishes, and regardless of the trial 

theories or tactics the defendant has actually pursued.” (Breverman, at p. 162.) 

However, the existence of “‘any evidence, no matter how weak’” will not justify 

instructions on a lesser included offense. There must be “‘evidence that a reasonable jury 

could find persuasive.’” (Ibid.; see Blair, at p. 745 [“[t]o justify a lesser included offense 

instruction, the evidence supporting the instruction must be substantial—that is, it must 

be evidence from which a jury composed of reasonable persons could conclude that the 

facts underlying the particular instruction exist”].) In addition, the failure to instruct on a 

lesser included offense in noncapital cases is “at most, an error of California law alone” 

requiring reversal only when “an examination of the entire record establishes a 

reasonable probability the error affected the outcome.” (Breverman, at p. 165.) 

 Cuevas contends the trial court had a duty to instruct on simple assault as a lesser 

included offense of assault with a firearm because Mancillas’s testimony presented “two 

materially divergent stories”: First, Mancillas testified he never saw a gun, but only 

heard about it from Estrada. Later, Mancillas testified he saw Guzman make motions 

consistent with the raising of a firearm and assumed he had one, which Estrada 

subsequently confirmed. Cuevas argues Mancillas’s inconsistent testimony constituted 

sufficient evidence to support a jury finding Guzman assaulted Estrada without using a 

firearm. Thus, Cuevas aided and abetted only a simple assault. 
9

 No simple assault instruction was warranted. The evidence was overwhelming a 

gun was used in the assault: Guzman admitted he brought a gun to the party; Estrada 

testified Guzman and Cuevas threatened to shoot him and he felt a cold, metallic object 

pressed against his stomach. Mancillas only briefly maintained at trial he did not see a 

gun and readily explained when confronted with his contrary testimony at the preliminary 

hearing, he was afraid to testify at trial. He then admitted he believed Guzman had a gun 

because he saw motions consistent with the raising of a gun. Mancillas’s initial statement 

he only heard about the gun from Estrada, standing alone, is simply not sufficient 

evidence from which a reasonable jury could conclude an assault occurred without the 

use of a firearm. Even if an instruction on simple assault was arguably justified, 

moreover, on the record here there is no reasonable probability Cuevas would have 

benefitted from it. (See Breverman, supra, 19 Cal.4th at p. 165.) 

2. Sufficient Evidence Supports the True Finding on the Gang Enhancement 

 To obtain a true finding on a gang enhancement allegation, the People must prove 

the underlying offense was “committed for the benefit of, at the direction of, or in 

association with any criminal street gang, with the specific intent to promote, further, or 

assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) This, in 

turn, requires proof of two related elements: First, there must be evidence the underlying 

felony was “committed for the benefit of, at the direction of, or in association with any 

criminal street gang.” Second, there must be evidence the defendant had “the specific 

intent to promote, further, or assist in any criminal conduct by gang members.” (People 

v. Albillar (2010) 51 Cal.4th 47, 51 (Albillar); People v. Gardeley (1996) 14 Cal.4th 605, 

615-616.)

8

 Emphasizing that Estrada and Mancillas testified someone identified South Side 

Watts, not Florencia 13, and no one displayed a gang sign or indicated in any way a gang 

motive, Guzman contends there was insufficient evidence to support the jury’s true 

 8 Guzman does not challenge the sufficiency of the evidence to establish Florencia 

13 was a criminal street gang. 
10

finding because the crimes committed did nothing to enhance his own reputation within 

the gang or otherwise benefit Florencia 13.9

 Guzman correctly observes not every crime 

committed by a gang member is a gang-related crime for purposes of section 186.22, 

subdivision (b)(1) (see, e.g., Albillar, supra, 51 Cal.4th at p. 60; People v. Morales 

(2003) 112 Cal.App.4th 1176, 1198) and “something more than an expert witness’s 

unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, 

or in association with any criminal street gang is required to justify a true finding on a 

gang enhancement.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 660.)

10

 Viewing the evidence in the light most favorable to the judgment, as we must, it is 

sufficient to support the gang enhancement. The first element may be established by 

substantial evidence the crime was committed “in association with” a criminal street 

gang, that is, that two or more gang members committed the crime together, unless there 

is evidence that they were “on a frolic and detour unrelated to the gang.” (People v. 

Morales, supra, 112 Cal.App.4th at p. 1198 [absent evidence of frolic and detour, “jury 

could reasonably infer the requisite association from the very fact that defendant 

committed the charged crimes in association with fellow gang members]; accord, People 

v. Leon (2008) 161 Cal.App.4th 149, 162; see Albillar, supra, 51 Cal.4th at p. 62 [when 

 9 “In considering a challenge to the sufficiency of the evidence to support an 

enhancement, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.’” (Albillar, supra, 51 Cal.4th 

at pp. 59-60.) 

10 Guzman also argues Estrada weighed a mere 95 pounds, so it is difficult to 

understand how Guzman or the gang could benefit from the assault of such a small man; 

and, although Estrada and Mancillas testified they thought Guzman and his confederates 

were gang members, they did not know to which gang they belonged. 
11

evidence establishes defendants came together as gang members to attack the victim, jury 

properly found they committed the crime in association with the gang].) The evidence is 

unassailable Guzman committed the crimes with other Florencia 13 gang members: 

Lima admitted his membership in the gang, and there was strong evidence Lozano and 

Cuevas were members of Florencia 13 as well. As for the frolic-and-detour contention, 

the jury, as it was permitted to do, rejected Guzman’s testimony he simply went to the 

party to have fun and Cuevas and Lima’s testimony they went to the party to pick up 

Cuevas’s girlfriend—the only evidence offered of activity that might be unrelated to the 

gang. In addition, Deputy Mezzano explained how the crimes benefitted Florencia 13’s 

reputation in the community—and the gang members status in the gang—

notwithstanding they did not announce the name of the gang. It was within the province 

of the jury to credit Mezzano’s explanation, which was not inherently improbable, 

notwithstanding Guzman’s and Cuevas’s arguments to the contrary. 

 The second element—specific intent to promote, further or assist in any criminal 

conduct by gang members—is also satisfied here from the evidence the crimes were 

committed jointly by several gang members. “[I]f substantial evidence establishes that 

the defendant intended to and did commit the charged felony with known members of a 

gang, the jury may fairly infer that the defendant had the specific intent to promote, 

further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th 

at p. 68; accord, People v. Livingston (2012) 53 Cal.4th 1145, 1171; see People v. 

Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a crime in concert with 

known gang members is substantial evidence which supports the inference that the 

defendant acted with the specific intent to promote, further or assist gang members in the 

commission of the crime”].) 

3. The Matter Must Be Remanded for Resentencing of Cuevas 

As the Attorney General concedes, the trial court’s imposition of the one-yearfirearm enhancement pursuant to section 12022, subdivision (a)(1), with respect to 

Cuevas’s conviction for assault with a firearm was unauthorized because use of a firearm 

is an element of the offenses. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 855-
12

856.) Although Cuevas contends the enhancement should simply be struck, the proper 

action is to remand for resentencing. (See People v. Woods (2010) 191 Cal.App.4th 269, 

273 [“[w]hen an unlawful sentencing decision is made . . . , the proper course of action is 

to allow the trial court to lawfully exercise its discretion and impose a lawful sentence”].) 

The trial court may have selected the middle term of three years for the aggravated 

assault conviction, instead of the low term of two years, if it realized it could not impose 

a one-year enhancement under section 12022, subdivision (a)(1). It is within the 

province of the trial court to consider this issue on remand. 

DISPOSITION 

The judgment is reversed as to Cuevas and remanded for further sentencing 

proceedings. The minute order entered following Guzman’s and Cuevas’s convictions is 

modified to state the statutory basis for the five-year gang enhancement is section 186.22, 

subdivision (b)(1)(B). In all other respects the judgments are affirmed. 

 PERLUSS, P. J. 

 We concur: 

 WOODS, J. 

 JACKSON, J.