P. v. Banchon

Filed 12/15/06 P. v. Banchon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DANNY BANCHON,
Defendant and Appellant.
B186899
(Los Angeles County
Super. Ct. No. BA265029)
APPEAL from judgments of the Superior Court for Los Angeles County,
Rand S. Rubin, Judge. Affirmed as Modified.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, and Michael A. Katz, Deputy Attorney
General, for Plaintiff and Respondent.

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Defendant and appellant Danny Banchon appeals from a judgment
sentencing him to 16 years in prison after a jury found him guilty of assault with
force likely to result in great bodily injury, a violation of Penal Code section 245,
subdivision (a)(1),1
and found that he personally inflicted great bodily injury within
the meaning of section 12022.7, subdivision (a), and that he committed the assault
for the benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1). Banchon was tried with two co-defendants, Pedro Hernandez
and Eliseo German, both of whom also were found guilty of the assault committed
for the benefit of a criminal street gang.2
Hernandez and German appealed from
the judgments against them, and on June 21, 2006, we affirmed the judgment
against Hernandez, and modified and affirmed the judgment against German in
Case No. B182673. We now modify and affirm the judgment against Banchon.
BACKGROUND
We previously set forth the facts of this case in our opinion affirming the
judgments against Hernandez and German. We repeat that same statement of facts
here, with some additional facts relevant to Banchon that were not included in our
previous opinion.
During the early morning hours of May 12, 2004, Lawrence Brodbar, who
worked in the Los Angeles Times warehouse on Westmoreland Avenue near
Cosmopolitan Street in Los Angeles, saw a homeless man, Charles Burst, run into
the warehouse yelling, “Call the police.” Two men ran in after Burst and started
hitting him with sticks. A third man also came into the warehouse, bleeding and
1
Further undesignated statutory references are to the Penal Code.
2
German also was found to have personally inflicted great bodily injury.

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yelling that Burst tried to rob him and had stabbed him. Brodbar went back into
his office and called 911. When he came out of his office he saw the first two men
dragging Burst out of the warehouse. Brodbar could not identify any of the men
involved in the incident.
Sergeant Eddie Solomon was the first police officer to arrive at the scene in
response to the 911 call. As he drove north on Westmoreland, he saw a male
Hispanic, whom he identified as German, walking south on Westmoreland. When
Solomon asked him what was happening, German changed direction and started
walking north, where he met up with another man, whom Solomon identified as
Hernandez, wearing a bloody T-shirt. Solomon continued to follow Hernandez.
He tried to determine whether Hernandez was a victim or a suspect, and whether
he needed assistance. When Hernandez continued to walk away, Solomon got out
of his patrol car and grabbed Hernandez’s T-shirt. Hernandez lowered his head to
slip out of the T-shirt, and walked away. Solomon eventually was able to detain
Hernandez with the assistance of a security guard. Solomon then called for an
ambulance to take Hernandez to the hospital, where he stayed for eight days.
In the meantime, Officer Carlos Diaz and his partner responded to the scene
and saw Burst, bleeding from his head, sitting on the sidewalk on Cosmopolitan
near Westmoreland, near a makeshift tent. Diaz asked Burst what happened to
him. Burst told him that he was asleep in his tent when three male Hispanic
“gangsters” started tearing down his tent and hitting him with broken bottles and
wooden sticks. He told the officer that he grabbed a knife that he keeps in his tent,
stabbed one of the men, and ran across the street to the warehouse to plead for
help. He said that the men chased after him, continued to hit him, and then
dragged him outside into the street. Diaz looked around the area where Burst was
sitting and saw two wooden sticks on the ground, one of which had nails or screws
sticking out of it. Diaz secured the sticks and accompanied Burst in an ambulance

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to the hospital. Blood was found on the nails or screws. D.N.A. testing showed
that the blood matched Burst’s blood.
Officer Marco Oropeza and his partner also responded to the scene. When
they arrived they saw two male Hispanics running in their direction. When the
officers got out of their patrol car and identified themselves, the men started to run
away. The officers chased after them and Oropeza saw them run into the Los
Angeles Times warehouse. The officers secured the building and called for backup
to help search the building. Eventually, Oropeza found the two men, identified as
German and Banchon, hiding in the rafters. When German and Banchon came
down from the rafters, German was not wearing a shirt, and Banchon was not
wearing shoes or socks. Oropeza then climbed into the rafters and recovered a
shirt, a pair of shoes, and a pair of socks, all of which had blood stains on them.
Officer Iris Santin also responded to the scene and interviewed Abel and
Victor Godinez, who worked in the warehouse. Abel told Santin that he saw two
people, who appeared to be nervous and looking for a rear exit, enter the
warehouse. He field identified German and Banchon as the two people he saw.
Victor told Santin that he saw two male Hispanics run into the warehouse. He said
they appeared to be nervous and sweating, and were looking for a place to hide.
Officer Fernando Prieto interviewed Burst in the hospital on the day of the
incident. Burst told Prieto that he was attacked by three male Hispanics. He said
he was asleep in his tent when he was awakened by someone entering his tent.
One of the men yelled at him and hit him in the head with a bottle, and then all
three men started hitting him with sticks and other objects. He told Prieto that,
fearing for his safety, he grabbed a knife and stabbed one of the men. He was able
to break away and ran to the warehouse, where he was beaten again and then
dragged outside. Prieto asked Burst whether he knew the men. Burst said he knew
they were Rockwood gang members from seeing them in the area and knowing

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that the area was Rockwood territory. But Burst told Prieto that he would not
identify anyone in court and wanted to “drop the whole thing.” Prieto observed
that Burst appeared to have puncture wounds on his hands and arms, among other
injuries.
Hernandez, German, and Banchon were charged by information with
attempted premeditated murder in violation of section 664/187, subdivision (a),
and assault by means likely to produce great bodily injury in violation of section
245, subdivision (a)(1). As to both counts, it was alleged that all three defendants
personally inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a), and 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, the information alleged that Hernandez and German
had prior felony convictions and prison terms.
At trial, Burst gave a description of the events that was different than the
description he gave to Officers Diaz and Prieto. He testified at trial that he was
asleep in his tent in the early morning hours of May 12 when he heard loud noises
that sounded like someone was trying to knock over his tent. He came out of his
tent with his knife and saw two men. One of the men, whom Burst identified as
Banchon,3
made a sudden move and Burst stabbed the other man, who was larger
and closer to Burst. Banchon then hit Burst once in the head and Burst lost his
coordination. The two men “took off” and Burst walked over to the Los Angeles
Times warehouse because he was bleeding and thought he needed help. He asked
the man who was working at the warehouse to call the police. While Burst was in
3
Burst said that he “presumed” the man was Banchon because Banchon was the
smallest of the three defendants.

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the warehouse, Banchon returned with another man (not the man Burst stabbed)
and did “plastic surgery” on Burst, kicking and hitting him, possibly with sticks or
other objects. The third man also came into the warehouse, but he did not
participate in the beating; Burst stated that that man never touched him. At some
point, Banchon and the other man partially dragged him out of the warehouse and
ran away when the police arrived.
Burst testified that he did not remember having any conversation with a
police officer at the scene, or with Prieto at the hospital. When questioned about
specific statements that Diaz and Prieto reported Burst made to them, Burst said
that he either did not make them or did not remember making them and probably
did not make them. He specifically denied telling any officer or detective that he
knew the area was Rockwood gang territory, and said that he never knew there
were any gangs in the neighborhood. But Burst also testified that sometime
between the incident and the trial, a male Hispanic who drove a black S.U.V.
approached and asked him about the incident, and Burst believed he was a
Rockwood gang member. Burst contended at trial, however, that no one ever
threatened him about his testimony.
Abel and Victor Godinez also testified at trial and denied making some or all
of the statements Officer Santin reported they made. In fact, Victor denied seeing
anything or speaking to any police officer at the time of the incident. Although
both men testified that no one threatened them about their testimony, they admitted
they were aware of some graffiti that was written on the side of the warehouse
shortly before the trial started. The graffiti said, “watch your back in court, all of
you.” Abel admitted that he felt threatened by the graffiti, but Victor said he was
not afraid to testify.
The jury acquitted all three defendants of attempted murder and of attempted
voluntary manslaughter as a lesser included offense. It found all three guilty of the

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assault count, and found the gang allegation to be true. It also found that Banchon
and German personally inflicted great bodily injury on Burst, but found that
allegation not to be true as to Hernandez.
The court sentenced Banchon to the midterm of three years on the assault
count, plus three years for the great bodily injury enhancement (§ 12022.7, subd.
(a)), and 10 years for the section 186.22, subdivision (b)(1)(C) gang enhancement,
for a total of 16 years. Banchon timely filed a notice of appeal from the judgment.
DISCUSSION
Banchon contends on appeal that: (1) the trial court erred by excluding the
testimony of a witness Hernandez sought to call; (2) the trial court abused its
discretion by admitting evidence of the graffiti that appeared on the side of the
warehouse shortly before trial; (3) substantial evidence did not support the gang
allegation; and (4) the trial court improperly imposed two enhancements based
upon the jury’s finding that Banchon personally inflicted great bodily injury upon
Burst. Each of these issues was raised in Hernandez’s and German’s appeals.
Banchon presents no additional facts or law to cause us to resolve those issues
differently in this appeal.
A. Exclusion of Vicki Edwards’ Testimony
Banchon contends the trial court erred by excluding the testimony of Vicki
Edwards, a witness Hernandez sought to call. There was no error.
The theory advanced at trial by all three defendants was that Burst was the
aggressor in this incident, that Hernandez did not participate in any way in the
assault on Burst, and that Banchon and German acted in self defense. Banchon
and Hernandez testified at trial that the incident at issue started when they were

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attacked by Burst without any provocation, and Banchon and German fought with
Burst to try to disarm him after he stabbed Hernandez.
Banchon testified that he and Hernandez were on the sidewalk near Burst’s
tent, arguing with raised voices, when Burst appeared “out of nowhere” and
stabbed Hernandez for no apparent reason. He said that Burst then started
swinging the knife at him, so he picked up a stick and used it to try to dislodge the
knife from Burst’s hand. When he was unsuccessful, German came over and
started hitting Burst until Burst fell and dropped the knife. German then dragged
Burst to move him away from the knife. Hernandez’s testimony was consistent
with Banchon’s.
After Hernandez testified, his attorney informed the court and prosecutor
that he wanted to call a homeless person he had just located, Vicki Edwards, to
testify regarding Burst’s character. The attorney explained that he expected
Edwards to testify that Burst was very aggressive toward people who came near his
tent and had pulled a knife on someone else who had come near it.4
The prosecutor
objected, in part on the ground of late discovery.
Edwards testified outside the presence of the jury at an Evidence Code
section 402 hearing. During the course of Edwards’ testimony, it became clear that
much of what she purportedly knew about Burst’s conduct was based upon
hearsay. The only incidents regarding Burst that she actually observed involved a
4
Hernandez also expected Edwards to testify that she had no problems with
Rockwood gang members, and that gang members had given her food, money, and
cigarettes. He contended on appeal that this testimony was relevant to show that the
assault was not gang related. Banchon does not challenge the exclusion of this portion of
Edwards’ proposed testimony.

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few incidents when Burst used racial epithets and told her or her friends to “get the
hell out of here” when they walked near his tent while talking.
In ruling on the prosecution’s motion to exclude Edwards’ testimony, the
court noted that Edwards had only a couple of encounters with Burst, and the only
conduct she observed was that Burst would “say stuff.” The court also expressed
concern that if Edwards testified, it would have to continue the trial for at least a
week to allow the prosecution to locate rebuttal witnesses. In addition, the court
found that Edwards’ proposed testimony was only slightly relevant, had little
probative value, and would be confusing and tend to distract the jury from what
actually happened on the day in question. Therefore, the court granted the
prosecution’s motion to exclude Edwards’ testimony.
On appeal, Banchon contends that Edwards’ testimony was “highly relevant
to the most important issue in this case: whether Burst was attacked by [Banchon]
or whether [Banchon] merely reacted in self defense to Burst’s violent outbreak.”
He argues that the proposed testimony was character evidence that is admissible
under Evidence Code section 1103 and People v. Rowland (1968) 262 Cal.App.2d
790, and that exclusion of the testimony was error because the testimony showed
that Burst’s conduct as described by Banchon and Hernandez was consistent with
Burst’s character. We disagree.
The trial court has broad discretion to exclude evidence it determines has
little probative value and would require an undue consumption of time or create a
danger of confusing the issues or misleading the jury. (Evid. Code, § 352; People
v. Ayala (2000) 24 Cal.4th 243, 282.) On appeal, we must defer to the trial court’s
determination unless it appears the court “exercised its discretion ‘“in an arbitrary,
capricious or patently absurd manner.”’” (People v. Frye (1998) 18 Cal.4th 894,
948.) Edwards testified that she had only a couple of encounters with Burst, and
that he was verbally aggressive. She had no direct knowledge that Burst ever

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physically attacked anyone without provocation. Therefore, her testimony was, at
best, only marginally relevant to support Banchon’s and Hernandez’s testimony
that Burst attacked Hernandez without provocation. The trial court reasonably
could find that the risk that the presentation of the testimony would unduly
consume time or would confuse the jury outweighed this very slight relevance.
Hence, the court did not abuse its discretion by excluding Edwards’ testimony.
B. Admission of Graffiti Evidence
Over defense objections, the prosecution introduced evidence of some
graffiti -- “watch your back in court, all of you” -- that appeared on the side of the
Los Angeles Times warehouse shortly before trial began. Although there was no
evidence that any of the defendants was responsible for the graffiti, the
prosecution’s gang expert, Officer Romeo Tamparong,5
testified that in his
opinion, the Rockwood gang wrote the graffiti because it was in Rockwood
territory. He also testified that he believed the graffiti related to this case based
upon its location and content. The court found that evidence regarding the graffiti
was relevant to explain why some witnesses’ trial testimony was different than the
story they initially told the police, and that it also was relevant to the gang
allegation. The court allowed the prosecution to introduce the evidence, and
instructed the jury that the evidence could be considered only for the purpose of
determining the credibility of witnesses and that the jury could not draw any
inference of the defendant’s guilt of the charges from that evidence.
Banchon contends on appeal that, although the trial court did not err in
finding the graffiti evidence relevant to the witnesses’ credibility, it nevertheless
5
We discuss Officer Tamparong’s qualifications to testify as an expert witness in
section C., post.

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abused its discretion in admitting it. He argues that the graffiti evidence was
unnecessary to show that witnesses changed their testimony out of fear of the gang,
because some witnesses testified that they were afraid to testify in court because
they feared gang retaliation. He also contends that the evidence was not
admissible as relevant to the gang allegation because the graffiti appeared nine
months after the assault on Burst and has no bearing on whether Banchon
committed the assault for the benefit of a gang. Therefore, Banchon contends the
graffiti evidence had “scant probative value” because it was merely cumulative of
other evidence. He argues that because the graffiti evidence was highly
prejudicial, the court abused its discretion by failing to exclude it under Evidence
Code section 352.
“We will not disturb a trial court’s exercise of discretion under Evidence
Code section 352 ‘“except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.”’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279,
304.) No such showing has been made here.
The trial court reasonably could conclude that the graffiti evidence had more
than “scant” probative value, and that its probative value was not substantially
outweighed by its possible prejudicial impact. First, the evidence was not merely
cumulative of other evidence that witnesses were afraid of testifying. Evidence of
the graffiti, warning potential witnesses to “watch [their] back in court,” provided a
specific reason for the changes in the witnesses’ testimony -- a specific threat of
retaliation against anyone who testified in this case, rather than a general fear of
the Rockwood gang. Second, the graffiti evidence, along with Officer
Tamparong’s expert testimony linking the graffiti to the Rockwood gang, tended to
show that the gang linked its reputation to this crime. Therefore the evidence was
relevant to show that the crime itself was related to the Rockwood gang.

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In light of the probative nature of the graffiti evidence, we cannot conclude
that the trial court exercised its discretion in an arbitrary, capricious or patently
absurd manner by overruling defendants’ objection under Evidence Code section
352.
C. Sufficiency of the Evidence to Support the Gang Allegation
Banchon was subjected to 10 year sentence enhancement under section
186.22, subdivision (b)(1), which provides for additional punishment for felonies
that are “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.” Banchon challenges the imposition of the
gang enhancement, contending there was no evidence that the assault was
committed for the benefit of a criminal street gang with the specific intent to
promote it. He is incorrect.
When a conviction or factual finding is challenged on sufficiency of the
evidence grounds, we apply the substantial evidence standard of review: “we
review the whole record in the light most favorable to the judgment below to
determine whether it discloses 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.] ‘“[I]f the
verdict is supported by substantial evidence, we must accord due deference to the
trier of fact and not substitute our evaluation of a witness’s credibility for that of
the fact finder.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
To support the gang allegation in the present case, the prosecution presented
expert witness testimony by Officer Tamparong. Tamparong had been assigned to
the Rampart Division gang unit for one and a half years at the time of trial, and had
worked in patrol in the Rampart Division for four years prior to that assignment.

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He was familiar with the Rockwood Street Locos gang, and identified all three
defendants (Banchon, Hernandez, and German) as admitted members of that gang.
He also identified photographs of all three defendants and noted that each of them
had Rockwood gang tattoos. He described the history of the Rockwood gang, the
kinds of crimes the gang commits, and how the gang holds on to its territories by
committing violent crimes and instilling fear in the community.
The prosecutor presented Tamparong with a “hypothetical,” asking him to
assume that: a homeless person is asleep in his tent in Rockwood gang territory
when three gang members start tearing up the tent; the homeless man gets hit in the
head by one of the gang members and stabs one of them; the homeless man runs
across the street to a building, yelling for help; two of the gang members chase
after him and continue to beat him, while the third gang member, who was stabbed,
follows them and yells that “this guy just stabbed me, this guy just robbed me”; the
gang members then drag the homeless man out of the building and continue to beat
him until the police arrive; the stabbed gang member runs from a police officer
who is trying to help him, while the other two gang members run into the building,
remove their bloody clothing, and hide. The prosecutor asked Tamparong
whether, in his opinion, the attack as described was committed for the benefit of a
criminal street gang. Tamparong responded that it was. He explained that an
unprovoked attack on a homeless person sleeping in the gang’s stronghold shows
other transients and the community that the gang can commit crimes at any time,
and creates an atmosphere of fear and intimidation.
Banchon contends that this testimony was insufficient to support the jury’s
finding on the gang allegation because creating fear in the community is not a
crime, and Tamparong “did not offer any concrete evidence that [Banchon’s]
assault furthered any other criminal activity by the Rockwood gang.” Banchon
relies upon a Ninth Circuit case, Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, in

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which that court held that, to support a gang enhancement under section 186.22,
subdivision (b)(1), the prosecution was required to show that the defendant had the
specific intent to promote, further, or assist in gang-related criminal conduct other
than the crime for which the defendant is on trial. (Garcia v. Carey, supra, 395
F.3d at p. 1103.)
As we recently explained in People v. Romero (2006) 140 Cal.App.4th 15,
19, the Garcia court’s interpretation of section 186.22, subdivision (b)(1) is
contrary the statute’s plain language, and we decline to follow it. (See People v.
Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in
matters involving state law]; Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d
1395, 1399 [state court’s interpretation of state statute is binding on federal court];
see also People v. Hill (2006) 142 Cal.App.4th 770, 774 [following Romero].) The
statute requires that the prosecution prove that the defendant had the specific intent
to promote, further, or assist in any criminal conduct by gang members, which may
include the conduct at issue at trial.
In the instant case, the prosecution presented evidence that Banchon,
Hernandez, and German, all of whom were admitted gang members, joined
together to commit an unprovoked attack on Burst. From this evidence, it can
reasonably be inferred that Banchon intended to assist criminal conduct by gang
members. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
D. Great Bodily Injury Enhancement
The jury found that Banchon personally inflicted great bodily injury upon
Burst. Based on this finding, the trial court imposed a three year sentence
enhancement under section 12022.7, subdivision (a). That same jury finding also
made Banchon’s conviction for assault a violent felony under section 667.5,
subdivision (c)(8). And because his conviction was for a violent felony, which the

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jury found was committed for the benefit of a criminal street gang, the court also
imposed a 10-year sentence enhancement under section 186.22, subdivision
(b)(1)(C), rather than a two, three, or four-year enhancement under section 186.22,
subdivision (b)(1)(A).
Banchon contends the imposition of the sentence enhancements under both
section 186.22, subdivision (b)(1)(C), and section 12022.7, subdivision (a) was
improper under People v. Briceno (2004) 34 Cal.4th 451 as impermissible
bootstrapping, or under section 654, which provides that an act or omission may
not be punished under more than one provision of law.
Banchon’s reliance on People v. Briceno is misplaced. In that case, the
Supreme Court explained that a finding that a defendant committed a non-serious
felony for the benefit of a criminal street gang, which finding makes defendant
subject to a maximum four year sentence enhancement under section 186.22,
subdivision (b)(1)(A), cannot be used in the same proceeding to elevate the non-
serious felony into a serious felony under section 1192.7, subdivision (c)(28), for
the purpose of imposing a five year sentence enhancement under section 186.22,
subdivision (b)(1)(B). (People v. Briceno, supra, 34 Cal.4th at pp. 464-465.) That
did not happen in the present case. Instead, in this case a single finding -- that
Banchon personally inflicted great bodily injury -- was used to impose two
different sentence enhancements. Thus, Briceno does not apply here.
In his alternative argument, Banchon contends that, under section 654, both
sentence enhancements cannot be imposed because the great bodily injury finding
was based upon a single act or indivisible course of conduct. The People do not
dispute Banchon’s contention that the great bodily injury finding was used to
impose both enhancements, and that the finding was based upon a single act.
Instead, the People contend that section 654 does not apply to enhancements, and
therefore the imposition of both enhancements was proper.

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As the People acknowledge, there is a split of authority as to whether section
654 applies to statutory sentence enhancements. This issue currently is pending
before the California Supreme Court in People v. Sloan, review granted June 8,
2005, S132605, and People v. Izaguirre, review granted June 8, 2005, S132980.
Without adding to the debate, we align ourselves with those courts that have held
that section 654 applies to sentence enhancements. (See People v. Reeves (2001)
91 Cal.App.4th 14, 55-56, and cases therein cited.) Therefore, we order the three-
year enhancement under section 12022.7, subdivision (a) stayed pursuant to
section 654.
DISPOSITION
The three-year enhancement imposed against Banchon under section
12022.7, subdivision (a), is stayed pursuant to section 654. The trial court is
ordered to prepare an amended abstract of judgment reflecting this modification.
As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.

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