KITCHING, J.
Jovanny Puccy Ruiz appeals from the judgment entered following his plea of no contest to attempted murder (Pen. Code, §§ 664/187, subd. (a))
Just before 8:00 p.m. on September 14, 2007, Jorge Gualito was walking down the street near 124 East Orange Grove in the City of Pasadena. A green Toyota Camry pulled up beside him. The car was being driven by one of Ruiz's co-defendants, Jose Bolanos. The other young men in the car were co-defendant Olvin Bolanos, who was sitting in the front passenger's seat, and Ruiz, who was sitting in the back seat on the driver's side. The driver of the car pulled into an alley between Raymond and Summit streets and stopped approximately 15 feet from Gualito. The driver, Jose Bolanos, got out of the Toyota, approached Gualito and asked him, "`Where are you from?'" Gualito did not respond and the two other men got out of the car. When Ruiz pulled out a knife, Gualito turned and began to run toward Summit Street.
Gualito ran for approximately 25 feet before he felt Jose Bolanos hit him twice in the back of the head with his fist. Gualito ran a little farther before Jose Bolanos hit him again. This time Gualito fell down. The three men, Ruiz, Jose Bolanos and Olvin Bolanos, all of whom had been chasing Gualito, began to kick him as he lay on the ground. Ruiz was kicking Gualito on the lower back while the other two men were kicking him in the head and on either side.
Gualito was lying on the ground when Ruiz stabbed him three times in the back. Gualito now has scars from the knife wounds. One is "in the middle of his back . . . slightly to the left of his spine. One [is] approximately six inches under his left arm" and "another one [is] further up from the other one in the middle of his back[,] slightly to the right side of his spine about an inch and a half higher to the right. [¶] . . . [E]ach [scar] is almost an inch" long.
After Ruiz stabbed Gualito, the three men ran back toward their car. At some point, Gualito lost sight of them.
Gualito was taken to a hospital, where he was treated for the "stab[]" wounds. Later that night, he spoke to a police officer and identified Ruiz, Jose Bolanos and Olvin Bolanos as his attackers. Gualito had never seen Ruiz before the night Ruiz stabbed him.
At approximately 8:00 p.m. on September 14, 2007, Jose Garcia was driving down the "100 block" of East Orange Grove in Pasadena. There, from a distance of approximately 45 feet, he saw "three individuals beating up a guy [on] a corner." The man being beaten was on the ground and the "three individuals [were] socking [and kicking] him." "One of [the men] was in back of him." That individual was "stabbing the person in the back." Of the three individuals Garcia saw beating Gualito, he identified Ruiz as the one with the knife. At no time did Garcia see Gualito wield any sort of weapon. Gualito was "curled up on the ground." Garcia identified the other two individuals who were beating and kicking Gualito as Olvin Bolanos and Jose Bolanos.
After Ruiz stabbed Gualito, Garcia saw the three men run northwest, across the street and toward some yellow apartments located at 97 East Orange Grove. One of the men, Olvin Bolanos, ran up some stairs, then back down. The three men then ran back across Orange Grove down to an alley where they got into a Toyota Camry and drove off.
Garcia got out of his car, approached Gualito, who was lying on his side, "curled up like a little fetus." Garcia "told him it was Okay" and to "just . . . sit down, [because] the guy in the [nearby] liquor store was going to call the paramedics." When Garcia asked Gualito "if he was Okay[,]" Gualito told Garcia that "he believed he had been stabbed." Garcia stayed with Gualito, who was bleeding from his back, until police officers arrived.
Harvester York is an armed guard for a security company called American Commercial Services, or A.C.S. York was working on the evening of September 14, 2007. He was riding in a car with three other guards, Salcedo, Raul, and Jay.
York and his companions were driving around East Orange Grove in Pasadena when, at a corner across from a liquor store, they saw a "stabbing victim on the ground." The liquor store owner, who was attempting to keep the man still until paramedics arrived, flagged down the guards and "gave [them] the information on the suspects and [told the guards] which way they [had gone]." York then saw "three individuals running [west] on Orange Grove." The three men, whom York identified as Ruiz, Jose Bolanos and Olvin Bolanos, ran behind the liquor store, into a parking lot, then back out to a parked dark green Toyota Camry. The guards followed and, as they approached the parked car, turned on their spotlight in addition to their headlights. York then saw two of the men, Ruiz and Olvin Bolanos, "dr[a]w handguns." The men aimed the guns at York and his companions as they drove by approximately 15 feet from the Camry. Ruiz was holding in his right hand what appeared to be a black, semiautomatic, nine-millimeter handgun while Olvin Bolanos was holding a weapon in both hands at the same time, aiming it at the car in which the four security guards were riding. When Ruiz made a "gesture" with his gun and told the security guards to "`Bring it on,'" Salcedo, who was driving the car, "reverse[d] out" of the area. He and the other guards were prepared to "handle the situation" if the suspects were armed with only a knife. They were not, however, prepared to deal with suspects armed with guns.
Pasadena Police Officer Mathew Campeau was on duty on the evening of September 14, 2007. Campeau was in the second or third car to arrive on the scene and he "helped conduct the high-risk felony traffic stop." When Campeau and his partner drove to Orange Grove, just east of Carter Alley and approximately one-half block from Andy's Liquor Store, they saw one patrol car "behind the suspect vehicle waiting for a second unit to arrive." The suspect vehicle, a Toyota Camry, was stopped and all three men were inside. Officer Campeau and his partner "began to extract [the suspects] from the car." After the suspects had been taken into custody, Campeau was informed by his sergeant that a knife had been recovered by a "chase car" after it had been "thrown out of the right-rear window of the suspect vehicle where Mr. Ruiz was sitting."
Officer Campeau is a gang expert. He testified that the "P.L.K.," or the "Pasadena Latin Kings," is a Hispanic gang and that Ruiz, Jose Bolanos and Olvin Bolanos are all known members. Ruiz has tattooed across his chest the words "`Latin Kings' "and tattooed across his left middle finger the letters "P.L.K." Olvin Bolanos also has gang tattoos. He has the letters "L.K." tattooed on the upper portion of his chest. Jose Bolanos has the letters "P.L.K." tattooed on his back and an image of a king's crown and the letters "L.K." on his right upper arm. The king's crown is a common symbol of the gang. "L.K" belt buckles are also common with P.L.K. members. The most common color worn by P.L.K. members is a light brown or khaki. Officer Campeau estimated that there are approximately 50 members of the P.L.K. gang, 15 of whom he would consider "active." Campeau characterized the P.L.K. as a "criminal street gang," the primary purpose of which is to "instill fear in the community." Members have been involved in murders, attempted murders, stabbings, narcotics sales and auto thefts.
P.L.K. has "hangouts" throughout Pasadena. "For example, 31 North Park Wood is a P.L.K. hangout on the east end [of] town. 97 East Orange Grove, 1900 Glenn Avenue, and 1950 El Sereno [are also] P.L.K. hangouts." In Officer Campeau's opinion, the present stabbing, which occurred near a gang hangout, was committed for the benefit of the gang.
On November 20, 2007, an information was filed charging Ruiz with attempted willful, deliberate, premeditated murder in violation of sections 664 and 187, subdivision (a) (count 1), and assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 2). It was further alleged as to counts 1 and 2 that, in the commission and attempted commission of the crimes, Ruiz personally used "a deadly and dangerous weapon(s), to wit, [a] knife, said use not being an element of the above offense[s]" (§ 12022, subd. (b)(1)) and causing the above offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(8) and (23).
Count 3 of the information charged Ruiz with the crime of assault with a firearm on Jide S. Akinshilo in violation of section 245, subdivision (a)(2). In count 4, it was alleged that Ruiz committed the crime of assault with a firearm on Joshua Salcedo in violation of section 245, subdivision (a)(2). Counts 5 and 6 alleged Ruiz committed assault with a firearm in violation of section 245, subdivision (a)(2) on Raul Diaz and Harvester York.
It was further alleged as to counts 1, 2, 3, 4, 5 and 6 that the offenses were committed "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1)(A).) In addition, it was alleged as to counts 3, 4, 5 and 6 that "in the commission and attempted commission of the . . . offenses[s], the said defendant(s), . . . Jovanny Puccy Ruiz, personally used a firearm(s), to wit: [a] handgun," within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a).
At proceedings held on March 17, 2009, Ruiz entered into a negotiated plea agreement. The prosecutor addressed Ruiz and stated: "Mr. Ruiz, the maximum you can receive for [the alleged] charges is . . . life. You are facing life right now. However, we are going to dismiss some counts and we are going to also dismiss the deliberate, premeditated portion of [the attempted murder] allegation" which "makes your maximum 23 years. [¶] . . . [¶]. . . We have[, however,] discussed [the proposed sentence] with your lawyer [and] we have agreed you will get no more than 19 years in state prison which means you will get the low term on the attempted murder plus the gang allegation, the great bodily injury and the knife [allegations] for a total of 19 years. That's going to be what the district attorney's office will be asking the judge to sentence you to."
After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to use the subpoena power of the court to present witnesses in his defense and his privilege against self-incrimination, Ruiz pleaded no contest to attempted murder, a violation of sections 664 and 187, subdivision (a), and admitted that, during the commission of the offense, he personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1), and personally inflicted great bodily injury upon Jorge Gualito within the meaning of section 12022.7, subdivision (a). In addition, Ruiz admitted that the crime was "committed for the benefit of, at the direction of, and in association with a criminal street gang" within the meaning of section 186.22, subdivision (b)(1)(C).
Ruiz was sentenced on June 23, 2009. Defense counsel argued that, in imposing sentence, the trial court should strike the "gang" enhancement. Counsel asserted that Ruiz had been a special education student and that the evidence suggested he had not been the instigator of the September 14, 2007 attack on Jorge Gualito. The attack had been the idea of Jose Bolanos. In addition, counsel indicated that Ruiz had "not served any substantial period of time in custody before, and under the circumstances any length of time [would be] a very long term for him. [¶] Even if the court were to strike the gang allegation, he still could end up in prison for a term of at least nine years."
The trial court responded: "Well, I appreciate and note the argument that the defense has made, but the problem is that sometimes people associate with the wrong people, and when they do that, they get dragged in with their criminal conduct. [¶] And the problem is he was the one who had the knife, and he was the one who did the stabbing. You can't get around that. [¶] The low term of five years is, I believe, the appropriate sentence. But I cannot strike the gang allegation too; so I have to respectfully deny your request."
The trial court sentenced Ruiz to the low term of five years in prison for his conviction of attempted murder in violation of sections 664 and 187, subdivision (a). The court imposed a term of three years for Ruiz's admission he inflicted great bodily injury during the commission of the offense in violation of section 12022.7, subdivision (a), and a period of one year for Ruiz's use of a deadly and dangerous weapon, a knife, in violation of section 12022, subdivision (b)(1). For his admission he committed the crime for the benefit of a criminal street gang in violation of section 186.22, subdivision (b)(1)(C), the trial court imposed a term of 10 years. In total, Ruiz was sentenced to 19 years in prison.
The trial court ordered Ruiz to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $20 court security fee (§ 1465.8, subd. (a)(1)).
Ruiz was given presentence custody credit for 643 days actually served and 97 days of conduct credit, or a total of 740 days.
Ruiz filed a timely notice of appeal on August 5, 2009.
This court appointed counsel to represent Ruiz on appeal on November 10, 2009.
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed August 18, 2010, the clerk of this court advised Ruiz to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
We concur:
KLEIN, P. J.
ALDRICH, J.
