People v. Pena CA2/3

Filed 6/18/21 P. v. Pena CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B303543

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA425994)
v.

CARLOS PENA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Jose I. Sandoval, Judge. Affirmed.
Robert A. Werth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
 A jury convicted defendant and appellant Carlos Pena of
home invasion robbery, burglary, and assault by means likely to
produce great bodily injury. He appeals, arguing that the
evidence was insufficient to support the verdicts and the trial
court committed instructional and sentencing errors. Discerning
no prejudicial error or evidentiary insufficiency, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
1. Facts
a. Background
Hugo O. owned a duplex located on Sheridan Street in Los
Angeles, where he lived with his girlfriend, Maricarmen G.; her
eight-year-old son sometimes stayed there as well. The duplex
was divided into two apartments, one upstairs and one
downstairs. Hugo and Maricarmen lived in the upper apartment,
and used the living room as their bedroom.2 Hugo rented three
bedrooms in the upper apartment to other persons, including
Marcos L., one of Hugo’s “helpers” in his construction business.
Another helper stayed in the downstairs apartment. The upper

1
We derive the facts primarily from testimony offered by the
victim, Hugo O.; his girlfriend, Maricarmen G.; one of Pena’s
accomplices; and various law enforcement personnel. Apart from
the testimony of a gang expert offered by codefendant Everardo
Estrada, the defense presented no evidence. We view the
evidence in accordance with the usual rules governing appellate
review. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–
1304.)

2
For ease of reference, we hereinafter refer to this room as
the living room.

2
apartment had a front door that led into the living room, and a
back door off the kitchen. The property was surrounded by a
chain link fence, and was equipped with a security camera that
showed the front yard and entrance. Hugo worked as a
contractor in the construction industry, and was not a gang
member.
Pena, Everardo Estrada, Carlos Flores, and Jorge Nieto
were all members of the State Street criminal street gang.
Estrada, who went by the moniker “Lalo,” and Flores, who went
by the moniker “Solo,” were in their 40’s. They were “respected,”
older members of the gang. Pena, who was 19 at the time of the
crimes, went by the moniker “Trigger” or “Little Trigger.” Nieto,
who was known as “Sporty,” was 17. Nieto and Pena had known
each other for years.
State Street gang members would often jump Hugo’s fence
and cross his property. Over time, their behavior escalated, and
they would break into the lower apartment and hang out there.
When Hugo asked them to stop, they laughed, said it was their
neighborhood, and he could not tell them what to do. When Hugo
told Estrada he would call the police, Estrada replied, “Well, go
ahead and you see what’s going to happen to you motherfucker.”
Afraid, Hugo did not follow through on his threat. On one
occasion the gang members broke a couple of windows; on
another, they kicked the door of the upper apartment, damaging
it. Hugo boarded up the lower level in an attempt to stop them
entering, but they pulled the boards off.
Nieto, however, was friendly towards Hugo. Nieto told
Hugo he did not think it was right for the other gang members to
invade his property, and said he was on Hugo’s side. Hugo
allowed Nieto into the upstairs apartment and socialized with

3
him sometimes. Pena was also cordial to Hugo. At some point,
Hugo offered both Pena and Nieto jobs. He also asked them to
keep the other gang members from invading the lower
apartment.
b. The burglary, robbery, and assault
Hugo did not own an assault rifle. However, approximately
a month before the charged crimes, “Mike,” a friend of one of
Hugo’s tenants, brought an assault rifle to the duplex and
showed it to Hugo. Hugo held the rifle, and then gave it back to
Mike. Nieto was present at the time; he held the rifle as well.
Hugo saw the rifle at the duplex the next day.
Approximately two weeks later, in mid-May 2014, Estrada
and two other gang members came to the duplex and demanded
that Hugo give Estrada two guns and $400 within two weeks.
Hugo stated he did not think that would be possible. Estrada
said he was not playing, and Hugo “better have that ready for me
in two weeks or you’ll take the consequences motherfucker.”
At approximately 2:00 a.m. on June 8, 2014, Hugo was in
his tenant Marcos’s room, talking to Marcos and Marcos’s two
friends, who were visiting. Maricarmen was in the living room,
awake; her son was asleep. Via the security camera, she saw five
men running toward the front door. Pena was among them. As
he approached, Maricarmen heard Pena say, “Who cares, fool,
we’ll just blast him.” The men banged on the door, repeatedly
screaming “open the door” and threatening to break it down. She
ran to get Hugo. When she and Hugo returned to the front door,
they found a gang member already inside, trying to open it for
the others. However, the door had three locks and the intruder
could not reach the highest one. The intruder told Hugo, “there’s
someone here to see you.” Hugo told him no one was coming into

4
his house, and ordered him to get out. As Hugo pushed the
intruder toward the back door, Hugo told Maricarmen to stay in
the living room and if something didn’t seem right, to call the
police.
Thereafter, a man came into the living room, demanded
Maricarmen’s cell phone, and told her to stay there with the door
closed. Maricarmen could hear men in the duplex, demanding
that everyone give them their wallets and cell phones, and telling
them to “shut the fuck up.” She recognized Estrada’s voice, and
heard him punching someone. At some point a gang member
placed Victoria, a visitor who was also present in the duplex, in
the room with Maricarmen. Victoria advised Maricarmen to take
her son and leave. Maricarmen did so, despite her fears for
Hugo. She ran with her son to a fast food restaurant, where she
called 911. A tape of her frantic 911 call was played for the jury.
Meanwhile, just after he told Maricarmen to stay in the
living room and as he was escorting the intruder out the back,
Hugo encountered Pena and Nieto coming inside through the
back door. They forced him into Marcos’s room. Pena said
quietly to Hugo, “Hey, they’re going to ask you if you have guns
here[,] just tell them you don’t have any and you’re going to be
okay.”
Flores entered the room and said he was Solo from State
Street, he was there to get something that belonged to one of his
friends, and someone else needed to talk to Hugo as well.
Estrada entered the room and ordered Nieto and Pena to take
wallets and phones from Hugo, Marcos, and Marcos’s friends.
Pena took Hugo’s phone and wallet. Nieto took wallets and
phones from Marcos and the two visitors. Hugo complied with

5
the demand to relinquish his wallet and phone because he was
afraid and was outnumbered.
After obtaining the phones and wallets, Nieto and Pena
stood back. Estrada said, “So where is my stuff that I asked you
to get motherfucker.” Hugo replied that he didn’t know what
Estrada was talking about. Estrada replied, “where my guns and
my money motherfucker.” Estrada then punched Hugo in the
face, breaking his nose and knocking him to the ground. Hugo
did not fight back. Estrada kicked Hugo’s head and body and
then forced him to stand up. Estrada said: “I’m going to ask you
one more time motherfucker, I’m not fucking playing where is my
guns and my money.” When Hugo said he had nothing for
Estrada, Estrada resumed the attack, punching Hugo’s face and
body. Estrada then said to Flores, “Come on, you can fuck him
up.” When Marcos attempted to come to Hugo’s aid, the
assailants forced him to face the wall on his knees.
Flores and Estrada engaged in a prolonged attack on Hugo.
They took turns kicking, stomping and punching him. They stood
on his stomach and knees and jumped with full force, and pushed
his head into the floor. Estrada burned Hugo’s hand with a lit
cigarette. Pena did not participate in the attack, and Hugo did
not see Pena after he took Hugo’s phone. During the assault,
Hugo did not fight back, but simply tried to cover himself.
Eventually, Estrada complained that his hand was hurting
from hitting Hugo, and demanded that someone retrieve a knife
from the kitchen so he could “finish this motherfucker.” No one
responded. Estrada repeated his command, but then noticed one
of Hugo’s construction tools, a cordless drill with a three-inch
screwdriver bit. Estrada grabbed the drill and threatened to put
out Hugo’s eyes with it. He attempted to do so, but Hugo used all

6
his remaining strength to push the drill away. Estrada then used
the drill on Hugo’s stomach, inflicting two wounds through his
clothing. At some point during the attack, Estrada pulled cash
from Hugo’s wallet and said, “Look, boys, more money for the
hood.”
Estrada then told Nieto, “You fuck him up now,” and Nieto
moved to comply; however, Estrada changed his mind and
stopped him. Estrada then asked Hugo where Maricarmen was.
Hugo said she was in the living room where her son was sleeping,
and pleaded with him to “leave her out of this” and not hurt her
or her child. Estrada replied that he did not “give a fuck” about
them. Estrada told Nieto to grab Hugo, and the group headed for
the living room. As they walked down the hall, Estrada came up
behind Hugo and hit the back of his head with the drill, causing a
large gash and excruciating pain. Hugo almost lost
consciousness, but Nieto pulled him to his feet.
Upon discovering that Maricarmen was no longer in the
living room, Estrada called Hugo a liar and said, “let’s take this
motherfucker for a ride.” He told Nieto and Flores to take any of
Hugo’s tools that they wanted. Hugo observed them yank the
surveillance camera equipment and monitor from the wall. The
group forced Hugo down the stairs to the back of the house. Hugo
quietly asked Nieto to let him go, but Nieto said, “Fuck no” and
“shut the fuck up.”
Once outside, Hugo saw two men standing next to a car,
with the trunk open. In the trunk sat a large, long knife.
Fearing that he was about to be killed, Hugo unsuccessfully
attempted to grab the knife. The men circled around him.
Estrada’s phone rang, and he stepped away from the others to
answer it. With the assailants momentarily distracted, Hugo

7
broke free and ran for his life. Flores chased after him. Hugo ran
past his dog, a pit bull, who was chained outside the duplex. The
dog apparently stopped Flores’s pursuit, giving Hugo time to
escape. Flores yelled after him, “You’re dead anyways
motherfucker,” and mimicked firing a gun at him.
Hugo knocked on the door of a nearby residence, but no one
answered. He then fled down a dark alley, found an unlocked
residence where no one was home, and hid inside for hours.
During the night, he could hear men’s voices and believed the
gang was looking for him. At daylight, he walked to a nearby
police station and reported what had transpired. He was
transported to a hospital by ambulance, where he remained for
two days.
c. Nieto’s testimony3
Nieto testified that he hung out with Hugo sometimes and
occasionally used methamphetamine with him.
At approximately 1:00 a.m. on June 8, 2014, he and Pena
were drinking beer at Pena’s house. Pena’s neighbor asked if
they knew someone who sold methamphetamine because he
wished to purchase some. They called a neighborhood contact,
“Raylene,” for that purpose. Pena did not wish to go, because his
girlfriend was imminently due to give birth, but Nieto talked him
into going. Pena, Nieto, and the neighbor walked down the street
to meet Raylene. En route, they ran into Flores, Estrada, and

3
Nieto initially pled guilty to torture, with a gang
enhancement. He testified pursuant to an agreement that if a
judge determined he testified truthfully, he would be allowed to
withdraw his plea and instead plead guilty to robbery in concert
and assault with a deadly weapon, with a negotiated sentence of
10 years.

8
another gang member known as “Scrappy.” The older gang
members stopped them, told the neighbor to leave, and asked
whether Nieto had a gun. When Nieto said no, Flores asked why
he was “running around” without one.4
Flores then brought up an incident that had occurred a few
days earlier, in which Nieto had “made a mistake.” He had been
in a car with Pena and another gang member. When police
pulled the car over, Nieto panicked and fled, leaving a gun in the
car and causing the driver’s arrest.5 As punishment for this
error, Flores “disciplined” Nieto by beating him with his fists for
10 to 15 seconds. Pena observed the beating.
Estrada then stated that “Hugo still has my rifle” and
accused Hugo of being a “snitch” and working with the police.
Flores asked if Nieto was a snitch as well, since he hung around
Hugo’s residence. Nieto denied it. Estrada replied, “Let’s go get
the rifle then.” Nieto believed this to be a challenge. Nieto
understood the rifle in question was the one he had previously
seen at the duplex.
According to Nieto, when he knocked on the door at the
duplex, Maricarmen asked who it was. After Nieto identified
himself, Hugo opened the door. Estrada, Flores, and Scrappy
then barged in. Pena came in after them. Once inside, at

4
Nieto explained that, as a State Street gang member, he
was expected to carry a gun when walking around the streets.

5
A police officer also testified regarding this incident. In the
early morning hours of June 5, 2014, he and a partner conducted
a traffic stop of a vehicle that ran a stop sign. Nieto and Pena
fled from the front and rear passenger seats, and a gun was
found in the car.

9
Estrada’s directive, Nieto took cell phones and money from the
occupants.6 When Hugo said he did not have the gun, Estrada,
Flores, and Scrappy beat Hugo up, including punching, stomping,
and kicking him. Pena did not participate. Estrada then pulled
out the drill and aimed for Hugo’s eye. At that point Pena said, “I
got to bounce, I ain’t trying to catch a case with my kid on the
way,” and left.
Nieto described the continuing attack on Hugo generally
consistently with Hugo’s account. After Hugo escaped, the
assailants went their separate ways. Nieto threw the phones and
wallets he had taken in a trash can.
d. Aftermath
After receiving Maricarmen’s 911 call, officers responded to
the duplex at approximately 2:50 a.m. They observed three to
five people running from the duplex in different directions. They
caught and detained Flores, who was holding a drill and was in
possession of three cell phones. No gun was found in the duplex.
The security camera was missing.
Hugo identified Flores, Estrada, Nieto, and Pena as the
assailants. Maricarmen identified Estrada and Pena.
Hugo was relocated and never returned to his duplex,
except to pick up his belongings while escorted by police officers.
In addition to the security camera, his tools and equipment were
gone, and the house had been ransacked. At the time of trial,
Hugo still suffered severe physical pain and blackouts due to the
attack.

6
In a pretrial statement, Nieto stated that both he and
Pena took the cell phones and wallets; at trial, however, he
testified that Pena simply stood in the hallway and did not take
anything from the victims.

10
 e. Gang testimony
The People presented evidence to prove the gang
enhancements, including information regarding the State Street
gang’s origins, primary activities, territory, membership,
hierarchy, rivals, symbols, and predicate crimes.7
2. Procedure
Pena, Estrada, and Flores were tried together by a jury.
Pena was found guilty of first degree residential burglary (Pen.
Code, § 459);8 assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)); and home invasion robbery
(§ 211). The jury found true a section 186.22, subdivision (b)
gang enhancement as to all the offenses. It further found that in
commission of the home invasion robbery, Pena voluntarily acted
in concert and entered a structure described in section 213. The
jury acquitted Pena of torture, kidnapping, attempted
kidnapping, and assault with a deadly weapon.
The trial court denied Pena’s motion for a new trial, and
sentenced him to 23 years to life in prison. It ordered all fees and
fines stayed.
Pena appeals.9

7
Because Pena does not challenge the sufficiency of the
evidence to prove the gang enhancements, we do not further
detail it here. We discuss the gang testimony where relevant,
post.

8
All further undesignated statutory references are to the
Penal Code.

9
Pena filed an untimely notice of appeal. This court granted
his application for relief from default.

11
 DISCUSSION
1. Sufficiency of the evidence
Pena contends that the evidence was insufficient to prove
all three of his convictions. We disagree.
a. Standard of review
“ ‘The test for evaluating a sufficiency of evidence claim is
deferential: “whether, on the entire record, a rational trier of fact
could find the defendant guilty beyond a reasonable doubt.”
[Citation.]’ ” (People v. Baker (2021) 10 Cal.5th 1044, 1102–
1103.) We review the record in the light most favorable to the
judgment, and presume the existence of every fact the trier of fact
could reasonably deduce from the evidence. (Id. at p. 1103;
People v. Vargas (2020) 9 Cal.5th 793, 820.) The record must
contain evidence that is “ ‘reasonable, credible, and of solid
value.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
However, “ ‘ “[c]onflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.]” ’ ” (Ibid.) The
same standard applies to cases in which the prosecution relies
primarily on circumstantial evidence (People v. Vargas, at p. 820);
we must “ ‘ “accept logical inferences that the jury might have
drawn from the circumstantial evidence.” ’ [Citation.]” (People v.
Baker, at p. 1103; People v. Flores (2020) 9 Cal.5th 371, 411.)
b. The evidence was sufficient to prove burglary
Burglary has two elements: (1) unlawful entry into a
structure, (2) with the intent to commit a theft or any
other felony therein. (§ 459; People v. Anderson (2009) 47 Cal.4th
92, 101; People v. Montoya (1994) 7 Cal.4th 1027, 1041; People v.

12
Garcia (2017) 17 Cal.App.5th 211, 223.) The defendant’s intent
to commit the crime must exist at the time he enters the
building. (People v. Hughes (2002) 27 Cal.4th 287, 348; People v.
Holt (1997) 15 Cal.4th 619, 669; In re Matthew A. (2008) 165
Cal.App.4th 537, 540.) However, “[o]ne may be liable for
burglary upon entry with the requisite intent, regardless of
whether the felony or theft actually committed is different from
that originally contemplated, or whether any felony or theft
actually is committed.” (In re Matthew A., at p. 540; People v.
Montoya, at pp. 1041–1042.)
Because intent is rarely susceptible of direct proof, it may
be inferred from the facts and circumstances disclosed by
the evidence. (People v. Holt, supra, 15 Cal.4th at p. 669; In re
Matthew A., supra, 165 Cal.App.4th at p. 541; People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1574.) Evidence the defendant took
property following the entry may create a reasonable inference
that the intent to steal existed at the moment of entry. (In re
Matthew A.,, at p. 541; In re Leanna W. (2004) 120 Cal.App.4th
735, 741.)
Pena argues that here, the evidence was insufficient to
prove the intent element. He argues that Flores and Estrada
were “rank amateurs” who failed to craft a competent plan to
carry out the home invasion robbery, and in any event, he had no
knowledge of their plan when he entered the duplex. He took
property only because Estrada instructed him to do so, and did
not remove anything from the residence.
Viewing the record in the light most favorable to the
judgment, the evidence was sufficient to prove Pena intended to
commit theft or robbery when he entered the duplex. Estrada
and Flores were older, “known” gang members. Nieto described

13
them as “big homies,” i.e., “somebody that’s respected” in the
neighborhood. Estrada was 41; Flores was 40. Nieto was 17;
Pena was 19. Nieto did not have a lot of respect in the gang. It
was expected that older gang members would “school” and
discipline younger members. According to the People’s gang
expert, it was also expected that younger gang members would
commit crimes for the gang and follow the lead of the older gang
members.
In line with the foregoing norms, when Nieto and Pena
encountered Estrada and Flores shortly before the home invasion
robbery, Flores beat Nieto up for his perceived transgressions.
Then, Estrada said that Hugo had his rifle. Flores claimed Hugo
was “working with the cops” and was “a snitch,” and accused
Nieto of the same because he frequented Hugo’s duplex. When
Nieto denied this, Estrada said, “Let’s go get the rifle then.”
Nieto took this to be a challenge. The clear implication was that
Nieto was required to prove himself by assisting in retrieval of
the rifle from Hugo by illicit means. It was not a reasonable
inference that the men planned to pay a friendly social call on
Hugo to pick up the rifle with permission. Had Estrada and
Flores intended to obtain the rifle peaceably, with Hugo’s
consent, there would have been no need for Nieto to accompany
them and prove himself.
Pena was present and would have heard the entire
conversation. It was a reasonable inference that he understood
the group was going to the duplex to steal the rifle or take it by
force. Given that Pena chose to accompany Nieto and the others
on their mission, it was also eminently reasonable for the jury to
infer that Pena intended to assist in the goal of stealing the rifle
or robbing Hugo of it. Pena, a younger gang member, could

14
hardly have expected to tag along without assisting his fellow
gang members and helping to carry out the theft or robbery.
That Pena knew the group’s intent was to forcibly obtain the gun
was also evidenced by his statement to Hugo, “they’re going to
ask you if you have guns here.”
Furthermore, the circumstances of the gang members’
entry into the duplex supported the conclusion that Pena had the
requisite intent when he entered. It was approximately
2:00 a.m., not an hour when one might expect a cordial social call
to transpire. Nor did the gang members behave like persons
headed to an amicable visit. When they approached the duplex,
they appeared mad, screamed and banged on the door, repeatedly
demanded, “open the door,” and threatened to break it down if
they were not allowed in. Hugo discovered Pena and Nieto
coming in through the back door, without permission. Based on
this mode of entry, the jury could reasonably infer Pena knew the
group was not there peaceably. Pena’s comment as he
approached the duplex, “Who cares, fool, we’ll just blast him,”
also indicated he knew the group was there for an illicit and
violent purpose.10 This evidence strongly supports the inferences

10
Pena attacks the evidence on this point as unreliable and
contends it should have been excluded as irrelevant. Among
other things, he argues that it was unclear how Maricarmen
knew Pena was the person who made the statement. But
Maricarmen testified she had seen Pena at the duplex previously
and recognized him on the security camera when he and the
others approached the door. When identifying him in a
photographic lineup, she wrote, “as he was approaching my
apartment I seen in the camera and heard his voice saying” “Who
cares, fool, we’ll just blast him.” Accordingly, there was sufficient
foundation for her testimony and the jury could reasonably

15
that Pena was well aware that the goal of the invasion was to
steal the rifle or force Hugo to give it to the gang, and that he
shared that intent. Indeed, it is difficult to imagine that a gang
member, who joins a group of his fellow gang members, who force
their way into an occupied residence at 2:00 a.m., has anything
other than a felonious purpose in mind. And, it was not
necessary that Pena was in on the scheme prior to encountering
Flores and Estrada, as he appears to contend.
As to Pena’s argument that he did not actually take
property from the duplex, the record does not require this
assumption. There was evidence he took Hugo’s phone and
wallet, and Hugo never got these items back. In any event, a
failure to actually remove property from the duplex is
immaterial. As noted, a defendant may be liable for burglary
whether or not a theft or crime is actually committed inside the
dwelling. (See, e.g., People v. Montoya, supra, 7 Cal.4th at
pp. 1041–1042; In re Matthew A., supra, 165 Cal.App.4th at
p. 540.) And, the fact that Pena was following a more senior gang
member’s directive does nothing to negate the intent element.
c. The evidence was sufficient to prove robbery
Pena next contends that the evidence was insufficient to
prove he committed robbery, because there was an insufficient

conclude it was accurate. Pena further argues that Maricarmen’s
testimony was not believable because no one in the group was
armed with a gun; it was unclear the statement was directed at
Hugo; Pena subsequently warned Hugo about the guns; and Pena
left before the attack concluded. None of these points
demonstrate the evidence lacked probative value. It was for the
jury, not this court, to evaluate possible contradictions in the
evidence. (See People v. Penunuri, supra, 5 Cal.5th at p. 142.)

16
showing he intended to permanently deprive Hugo of his
property.
“ ‘Robbery is defined as “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.” (§ 211.) Robbery requires the “specific intent to
permanently deprive” the victim of his or her property.’ ” (People
v. Suarez (2020) 10 Cal.5th 116, 168–169; People v. Mora and
Rangel (2018) 5 Cal.5th 442, 489.)
Here, the evidence was sufficient to prove Pena took Hugo’s
personal property—his phone and wallet—from his immediate
presence. Hugo testified that Nieto and Pena took him to one of
the tenants’ bedrooms, where Pena demanded, “Give me your
phone and your wallet,” and Hugo handed the items over. There
was also evidence the taking was accomplished by force or fear.
When asked why he complied with Pena’s demand, Hugo
explained, “I was afraid and I know these guys come in packs,
you know, it’s not going to be just two or three. I know there’s a
bunch of them . . . that’s how they do it.”
Pena does not challenge the sufficiency of the evidence for
these elements, but argues there was insufficient proof he
intended to permanently deprive Hugo of his property. He
argues that he took the items only because Estrada or Flores
directed him to; this directive was consistent with a desire to
prevent the victims from calling police; and there is no evidence
he kept the items when he left.
We are not persuaded. Our Supreme Court has noted that,
in an appropriate case, a defendant’s demand for a victim’s wallet
is alone sufficient to convict of attempted robbery. (People v.
Mora and Rangel, supra, 5 Cal.5th at p. 489.) Here, of course,

17
there was more than an attempt: Hugo actually turned over his
property. The jury could reasonably infer that when a gang
member participates in a home invasion in the middle of the
night, and he and his fellow gang members demand cell phones
and wallets from everyone present, it is unreasonable to believe
they are simply collecting them for safekeeping and intend to
return them at the conclusion of the evening. Indeed, they did
not do so here: when Flores was apprehended shortly after the
crimes, he had three cell phones on his person, and Hugo never
got his phone or wallet back.
And, the fact Hugo’s phone and wallet were never
recovered raises the inference that Pena did, in fact, remove them
from the residence. Whether Pena kept the items or discarded
them is immaterial. “Permanently,” as used in the context of
robbery, is “ ‘ “not to be taken literally.” ’ ” (People v. Avery (2002)
27 Cal.4th 49, 55; People v. Davis (1998) 19 Cal.4th 301, 307.)
Where a defendant takes property with the intent to use it
temporarily and then abandons it in circumstances making it
unlikely the owner will recover it, the requisite intent for robbery
exists. (People v. Avery, at p. 56; People v. Davis, at p. 307, fn. 4;
People v. Hall (1967) 253 Cal.App.2d 1051, 1054 [“The fact that
the wallet was returned, or later discovered abandoned . . . does
not absolve appellant of any element essential to support his
conviction of robbery.”].) The evidence was sufficient.
d. The evidence was sufficient to prove assault
“An assault is ‘an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.’
(§ 240.) An assault is aggravated when committed with a deadly
weapon or ‘by any means of force likely to produce great bodily
injury.’ (§ 245, subd. (a)(1).) [¶] ‘Assault requires the willful

18
commission of an act that by its nature will probably and directly
result in injury to another (i.e., a battery), and with knowledge of
the facts sufficient to establish that the act by its nature will
probably and directly result in such injury.’ ” (People v. Murray
(2008) 167 Cal.App.4th 1133, 1139; People v. Malik (2017) 16
Cal.App.5th 587, 598; see CALCRIM No. 875.) Assault is a
general intent crime; the intent to cause injury is not an element.
(People v. Leonard (2014) 228 Cal.App.4th 465, 486.)
It was undisputed that Pena did not join in the physical
attack on Hugo. Therefore, he can be liable for assault only as an
aider and abettor.11 A person aids and abets a crime when he:
(1) knows of the perpetrator’s unlawful purpose; (2) intends to
commit, facilitate, or encourage commission of the crime; and
(3) by act or advice, aids, promotes, encourages or instigates its
commission. (People v. Smith (2014) 60 Cal.4th 603, 611; People
v. Delgado (2013) 56 Cal.4th 480, 486.) Mere presence at the
crime scene is insufficient to establish aiding and abetting, but it
is one factor, among others, that may support a conviction as an
aider and abettor. (People v. Sedillo (2015) 235 Cal.App.4th
1037, 1065; In re Juan G. (2003) 112 Cal.App.4th 1, 5; People v.

11
The People point out that an aider and abettor is guilty not
only of an intended crime, but of any offense committed that is
the natural and probable consequence of that crime. (See People
v. Mejia (2012) 211 Cal.App.4th 586, 606; People v. Nguyen (1993)
21 Cal.App.4th 518, 530.) Pena’s jury was instructed on these
principles in regard to the torture and kidnapping charges, but
not in regard to the assault. Despite this omission, the People
argue that the jury could have found Pena guilty as an aider and
abettor based on natural and probable consequences principles.
Given the instructional omission, we do not address this
contention.

19
Campbell (1994) 25 Cal.App.4th 402, 409.) The act required for
aiding and abetting liability need not be a substantial factor in
the offense. “ ‘ “Liability attaches to anyone ‘concerned,’ however
slight such concern may be, for the law establishes no degree of
the concern required to fix liability as a principal.” [Citation.]’ ”
(People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743.)
“ ‘Whether defendant aided and abetted the crime is a question of
fact, and on appeal all conflicts in the evidence and reasonable
inferences must be resolved in favor of the judgment.’ [Citation.]”
(People v. Campbell, at p. 409; In re Juan G., at p. 5.)
There was overwhelming evidence Pena’s accomplices,
Estrada and Flores, carried out an assault that was likely to—
and did—cause great bodily injury to the victim; Pena does not
argue otherwise. There was also sufficient evidence that Pena,
by taking the victim’s phone and by his mere presence during a
large portion of the assault, facilitated the crime. The jury could
readily infer that the fact a group of gang members were present
with Estrada and Flores, and acted as “backup” for them,
prevented Hugo from successfully fending off their attack or
escaping sooner. The jury could also conclude Pena’s and Nieto’s
presence discouraged or prevented the other persons present in
the duplex from assisting Hugo. As the gang expert explained,
the presence of multiple gang members causes fear and
intimidation. In short, Pena’s mere presence facilitated the
brutal assault.
Pena argues the evidence was nonetheless insufficient,
because he did not know that Estrada and Flores planned to
assault Hugo, and therefore could not have intended to aid and
abet in the offense. Again, we disagree. As we have explained,
there was sufficient evidence Pena knew Flores and Estrada were

20
set on obtaining Hugo’s rifle, and were bringing a group of gang
members to obtain it. The entry into the duplex was not
peaceable. The jury could reasonably infer Pena knew that, if
Hugo failed to turn over the rifle, violence against him would
ensue. The gang expert testified that the State Street gang’s
primary activities included assault with deadly weapons and
battery. He also explained that in gang culture, violence is
valued and bolsters a gang member’s status and reputation.
Given this evidence, it was hardly a stretch for the jury to
conclude Pena must have been aware that an assault would
transpire if Hugo was not cooperative. Moreover, both the expert
and Nieto testified about the consequences for persons believed to
be “snitches.” According to the expert, a snitch was subject to
violence from the gang, including an assault or even death.
According to Nieto snitches could be beaten, stabbed, or killed.
Pena had just heard Estrada claim that Hugo was a snitch. It
was to be expected, therefore, that the group would violently
assault Hugo.
Estrada and Flores began beating Hugo almost
immediately upon encountering him, when he stated he did not
have the gun. The beating continued for a substantial period of
time. According to Nieto, Pena left the scene, but not until
Estrada retrieved the drill and began attacking Hugo with it.
Thus, Pena was present for a significant portion of the assault,
while Flores and Estrada punched, stomped, kicked, and burned
Hugo. At the very least, Pena had to have known of his
accomplices’ intent once the attack began; yet he stayed and
provided backup for a significant period. There was no
evidentiary insufficiency.

21
 2. Jury instructions
Pena next contends the trial court made instructional
errors that violated state law and his federal constitutional rights
to due process and a fair trial, requiring reversal. We agree the
court erred, but find the errors harmless.
a. Failure to instruct with CALCRIM No. 203
The parties did not request, and the trial court did not give,
CALCRIM No. 203. That instruction provides in pertinent part:
“You must separately consider the evidence as it applies to each
defendant. You must decide each charge for each defendant
separately.” The court has a sua sponte duty to instruct on this
principle. (People v. Mask (1986) 188 Cal.App.3d 450, 457.) This
is so because it is “fundamental that when more than one
defendant is prosecuted in any action, the jury must consider
separately the guilt or innocence of each defendant.” (Ibid.) The
People agree the instruction was improperly omitted, but aver
that the omission was harmless. We agree with the People.
The jury acquitted Pena of torture, kidnapping, attempted
kidnapping, and assault with a deadly weapon. It rendered
different verdicts for Estrada and Flores on these counts,
convicting them of torture, assault with a deadly weapon, and
attempted kidnapping. Thus, it is clear that the jury actually did
consider the evidence individually and decided each charge for
each defendant separately. Accordingly, the omission was
harmless under any standard. (Chapman v. California (1967)
386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.)
Pena urges that the different verdicts are insignificant,
because the torture, assault with a deadly weapon, and
attempted kidnapping occurred after he had left the scene. But
this begs the question: the jury must have considered the

22
evidence in regard to each defendant individually, or it would
have not taken into account the fact Pena left. And, it is not
accurate that the conduct amounting to torture occurred only
after Pena departed the scene; he was present for the brutal
beating and burning of Hugo’s hand with the cigarette. Reversal
is not required.
b. Burglary instruction
(i) Additional facts
The trial court initially read to the jury a modified version
of CALCRIM No. 1700 (burglary), which was also contained in
the original packet of instructions provided to the jury. As the
court was reading the instructions aloud, it alerted the jury that
due to a computer glitch, some edits it had made to a different
instruction, CALCRIM No. 1601, were not reflected in the written
version. The court stated that it would make the changes and
provide the corrected instruction to the jury later that day. The
jury retired for deliberations at 10:07 a.m.
After the noon recess, the court informed the parties that it
had made edits not only to CALCRIM No. 1601, but also to
CALCRIM No. 1700 and a third instruction. The jury was
returned to the courtroom. The court explained it had made
corrections to the three instructions, read the corrected versions
to the jury, and provided it with written copies of the newly
edited instructions. As pertinent here, the edited, written version
of CALCRIM No. 1700 was as follows: “The defendants are
charged in Count 2 with burglary in violation of Penal Code
section 459. [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendants entered
a building; [¶] AND [¶] 2. When they entered a building they
intended to commit theft, assault or robbery[.] [¶] To decide

23
whether the defendant intended to commit theft, robbery or
assault, please refer to the separate instructions that I have
given you on those crimes. [¶] A burglary was committed if the
defendant entered with the intent to commit theft or burglary.
The defendants do not need to have actually committed theft as
long as they entered with the intent to do so. The People do not
have to prove that the defendant actually committed theft or
burglary. The [P]eople allege that the defendants intended to
commit theft, burglary or assault. You may not find the
defendant guilty of burglary unless you all agree that they
intended to commit one of those crimes at the time of the entry.
You do not all have to agree on which one of those crimes he
intended.” When reading the new instruction, the court once
substituted “defendant” for “defendants”; thrice substituted
“defendants” for “defendant”; and changed “he” to “they” in the
last line.
Pena points to two problems with the instruction. First, he
correctly observes that the instruction in some places used the
plural “defendants,” when it should have read “defendant.”
Second, the instruction inconsistently listed the target crimes,
and in some places stated that the intent requirement was
satisfied if the defendant (or defendants) had the intent to
commit burglary when entering the dwelling. The People agree
that the instruction contained errors, but contend they were
harmless. We agree with the People.
(ii) Applicable legal principles and standard of
review
In a criminal case, even absent a request, the trial court
must instruct the jury on the general principles of law relevant to
the issues raised by the evidence and necessary for the jury’s

24
understanding of the case. (People v. Molano (2019) 7 Cal.5th
620, 667.) We review claims of instructional error de novo.
(People v. Rivera (2019) 7 Cal.5th 306, 326; People v. Mitchell
(2019) 7 Cal.5th 561, 579.) We consider the challenged
instruction in the context of the trial record and the instructions
as a whole to determine whether there is a reasonable likelihood
the jury applied it in an impermissible or unconstitutional
manner. (People v. Rivera, at p. 326; People v. Mitchell, at
p. 579.)
Pena argues that because the instruction “randomly
alternated between” the singular “defendant” and the plural
“defendants,” the jury was likely confused about whether all
defendants needed the required intent, or whether they were all
guilty if only one of them had such an intent. We agree that the
instruction was flawed, but in context, we do not believe the jury
would have misapplied its language to Pena’s detriment. We do
not agree that the jury could have been confused in the way Pena
suggests. Using their common sense, jurors likely understood
that the instruction sometimes used the plural simply because
there were three defendants, and did not attribute particular
significance to the variance between the plural and the singular.
“ ‘Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might’ ”; instead, a “ ‘commonsense understanding of the
instructions in the light of all that has taken place at the trial [is]
likely to prevail over technical hairsplitting.’ ” (People v. Kumar
(2019) 39 Cal.App.5th 557, 568.)
Moreover, if jurors took the instruction’s use of the plural
“defendants” literally, this could only have inured to Pena’s
benefit. The language, “When they entered a building they

25
intended to commit theft, assault or robbery,” read literally, could
only mean that all the defendants must have had the requisite
intent when they entered the duplex in order to find any of them
guilty. The language cannot logically be read to mean that if only
one defendant had the required intent, his intent could be
attributed to the other defendants. Nothing in the instruction or
the parties’ arguments suggested that one defendant’s intent
would suffice to make the others guilty. Thus, there is no
reasonable probability the jury misapplied the instruction; and
even it if had, the error would have favored appellant.12
The instruction was also flawed in that it inconsistently
listed the target crimes. The instruction began by correctly
stating, under element 2, that the intent required at entry was to
commit theft, assault, or robbery. This principle was
immediately reiterated, again correctly, in the next sentence.
But the instruction then deviated from those correct statements
of law in the final paragraph, twice referring to the target crimes
as “theft or burglary,” once referring to “theft, burglary or
assault,” and once referring only to theft. As the People agree, a
“person cannot commit burglary merely by intending to commit
burglary.”

12
The same is true in regard to Pena’s complaint that the
aiding and abetting instruction, in some places, also used the
plural “defendants.” Moreover, the aiding and abetting
instruction expressly clarified that the aider and abettor had to
personally know and intend the crime; it stated, “Someone aids
and abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.”

26
 Nonetheless, “ ‘[n]ot every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process
violation.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 906.)
Here, despite the instructional fumble, we cannot see how a
reasonable jury, exercising its common sense, would have been
misled to Pena’s detriment. Instead, reasonable jurors would
have understood that the second paragraph simply contained
typographical errors, and relied on the correct portion of the
instruction that listed the elements.
An examination of the particulars of the second paragraph
makes this clear. The first sentence of the second paragraph
stated, “A burglary was committed if the defendant entered with
the intent to commit theft or burglary.” To the extent the
language referenced theft, it was correct; it was incomplete in
that it failed to list assault and robbery, but elimination of two of
the target crimes was helpful, not harmful, to Pena. To the
extent it stated that “a burglary was committed if the defendant
entered with the intent to commit . . . burglary,” this language
directly contradicted the first half of the instruction, and was
nonsensical to boot. Jurors would either have reasoned that the
instruction contained a typographical error, or would have
assumed the reference to burglary was shorthand for the two
elements listed earlier in the instruction, and looked to that
earlier portion for guidance. The same is true in regard to the
last two sentences of the instruction. Most likely, the jury simply
relied on the correct statement of the elements listed twice at the
beginning of the instruction.
This understanding was reinforced by the prosecutor’s
argument, in which he expressly stated, “These are the only two
elements that I have to prove beyond a reasonable doubt for these

27
defendants to be guilt of burglary, CALCRIM 1700. The
defendant entered a building and when he entered the building
he intended to commit theft, robbery, assault or a felony, right.”
(See People v. Young (2005) 34 Cal.4th 1149, 1202 [“The
reviewing court also must consider the arguments of counsel in
assessing the probable impact of the instruction on the jury.”];
People v. Harper (2020) 44 Cal.App.5th 172, 193.) Pena argues
that the prosecutor’s argument was irrelevant since the jury was
instructed that it should be guided by the instructions, not the
arguments. But the first portion of the instruction was consistent
with the prosecutor’s argument, bolstering the conclusion that
the jury would have understood which elements were required.
The next line in the instruction, “The defendants do not
need to have actually committed theft as long as they entered
with the intent to do so,” reinforced that the intent to commit a
crime other than “burglary” was required; omission of the other
target crimes, again, could not have prejudiced Pena. The next
line, “The People do not have to prove that the defendant actually
committed theft or burglary,” was correct to the extent it
referenced theft and nonsensical to the extent it referenced
burglary. No reasonable juror would have concluded the People
did not have to prove Pena committed the charged crime of
burglary. To adopt such an understanding, jurors would have
had to completely disregard not only the clear statement of the
elements set forth at the beginning of the instruction and during
the prosecutor’s argument, but also the fundamental instructions
given regarding reasonable doubt and the People’s burden of
proof. We presume jurors are intelligent persons, capable of
understanding and correlating all the instructions they are given.

28
(People v. Landry (2016) 2 Cal.5th 52, 95; People v. Covarrubias,
supra, 1 Cal.5th at p. 915.)
We are not persuaded by Pena’s argument that, based on
the instructional errors, the jury could have found him guilty
even if it concluded he did not intend to commit any crime when
he entered the duplex. And, as we have discussed ante, there was
strong evidence he intended to assist his fellow gang members in
committing a theft or robbery inside the duplex. The instruction
was partially correct and advised the jury of the elements of the
crime. We cannot conceive of a way that the jury realistically
could have interpreted the errors in the second paragraph in a
fashion that prejudiced Pena, especially in light of the strong
evidence of his intent.
Although we conclude the instructional errors were
harmless, we find them troubling. It is unfortunate that neither
the trial court, the prosecutor, nor the three defense attorneys
noticed these errors and rectified them at trial.
3. Sentencing issues
The trial court sentenced Pena as follows. For the first
degree residential burglary, it imposed the midterm of four years,
stayed pursuant to section 654. For the home invasion robbery
and the attached gang enhancement, it imposed life in prison
with a minimum 15-year parole eligibility date. (See § 186.22,
subd. (b)(4)(B).) On the conviction for assault by means likely to
produce great bodily injury, it imposed the high term of four
years, consecutive, plus the high term of four years on the related
gang enhancement.13 The court explained that it found, as

13
During trial, Pena pled no contest to unlawfully taking or
driving a vehicle in violation of Vehicle Code section 10851,
subdivision (a) and hit and run driving in violation of Vehicle

29
factors in aggravation, that the victim was vulnerable; the
manner in which the crime was committed indicated planning;
Pena had served a prior prison term; and his prior convictions
were numerous and increasing in seriousness.14
a. Section 654 does not bar sentence on the assault
conviction
Pena argues that the trial court should have stayed
sentence on the assault conviction, because there was insufficient
evidence he harbored separate intents and objectives in the
assault and the robbery.
Section 654 “generally precludes multiple punishments for
a single physical act that violates different provisions of law
[citation] as well as multiple punishments for an indivisible
course of conduct that violates more than one criminal statute
[citations].” (People v. Newman (2015) 238 Cal.App.4th 103, 111–
112, italics omitted.) Whether a course of criminal conduct is
divisible depends on the intent and objective of the actor. If all
the offenses were incidental to one objective, the defendant may
be punished for any one them, but not for more than one. (People

Code section 20002, subdivision (a), both arising from an
unrelated incident occurring on June 19, 2014. For those offenses
the court imposed the low terms of 16 months and 6 months,
respectively, to be served concurrently with the terms on the
burglary and assault charges. Pena does not challenge these
convictions or sentences on appeal.

14
The reporter’s transcript reads, “The defendant’s prior
conviction [sic] were numerous and precedes seriousness.” In
context, it is clear that the word “precedes” is either a
typographical error or a misstatement, and the court intended to
say the offenses were increasing in seriousness.

30
v. Jackson (2016) 1 Cal.5th 269, 354.) But if the defendant
harbored multiple objectives, independent of and not merely
incidental to each other, he may be punished for each violation
committed in pursuit of each independent objective, even though
the violations share common acts or were parts of an otherwise
indivisible course of conduct. (People v. DeVaughn (2014) 227
Cal.App.4th 1092, 1112; People v. Vasquez (2020) 44 Cal.App.5th
732, 736–737.) The temporal proximity of the two offenses is
insufficient by itself to establish they all were incidental to a
single objective. (People v. Jackson, at p. 354; People v. Vasquez,
at p. 737.)
Whether section 654 applies is a question of fact for the
trial court, which has broad latitude in making its determination.
Its findings will be upheld if supported by substantial evidence,
and we view its determination in the light most favorable to the
judgment. (People v. Jackson, supra, 1 Cal.5th at p. 354; People
v. DeVaughn, supra, 227 Cal.App.4th at p. 1113; People v.
Vasquez, supra, 44 Cal.App.5th at p. 737.) When the trial court
does not explicitly consider section 654, we infer that it implicitly
determined each crime had a separate objective. (In re
Raymundo M. (2020) 52 Cal.App.5th 78, 94; People v. Tarris
(2009) 180 Cal.App.4th 612, 626–627.) Because a sentence
imposed in violation of section 654 is unauthorized, it may be
corrected at any time even if the defendant did not object below.
(People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13; People v.
Brents (2012) 53 Cal.4th 599, 618.)
“It has long been recognized that where a defendant is
convicted of robbery and other crimes incidental to the robbery
such as assault, section 654 precludes punishment for both
crimes.” (People v. Mitchell (2016) 4 Cal.App.5th 349, 354.) But

31
there is an exception to this principle. “[A]n act of ‘gratuitous
violence against a helpless and unresisting victim . . . has
traditionally been viewed as not “incidental” to robbery for
purposes of Penal Code section 654.’ [Citations.]” (People v.
Bui (2011) 192 Cal.App.4th 1002, 1016; People v. Cleveland
(2001) 87 Cal.App.4th 263, 271–272.) “ ‘[A]t some point the
means to achieve an objective may become so extreme they can
no longer be termed “incidental” and must be considered to
express a different and more sinister goal than mere successful
commission of the original crime. . . .’ ” (People v. Cleveland, at
p. 272; People v. Vasquez, supra, 44 Cal.App.5th at p. 737 [§ 654
“ ‘cannot, and should not, be stretched to cover gratuitous
violence or other criminal acts far beyond those reasonably
necessary to accomplish the original offense’ ”].)
Section 654 is inapplicable here because the robbery and
the assault involved different acts and gratuitous violence. In the
former, Pena took Hugo’s phone; in the latter, Pena’s accomplices
brutally beat Hugo. (See People v. Jackson, supra, 1 Cal.5th at
p. 354 [§ 654 inapplicable where two crimes were accomplished
by different physical actions].) Pena had already robbed Hugo
when he aided and abetted his accomplices’ gratuitous attack.
Flores’s and Estrada’s conduct of repeatedly punching, kicking,
stomping, and burning the unresisting Hugo was far more
extreme than that necessary to commit a simple robbery, and
cannot be considered merely incidental. Accordingly, section 654
did not operate to bar sentence on both robbery and assault.
People v. Galvez (2011) 195 Cal.App.4th 1253, is
instructive. There, the assailants tried to take a victim’s phone
to prevent him from reporting a crime. After he dropped the
phone the assailants nonetheless stomped and kicked him.

32
(Id. at pp. 1257–1258.) Section 654 did not preclude punishment
for both assault and attempting to dissuade a witness; it was
“reasonable to infer that appellant’s primary objective in
assaulting [the victim] while he was on the ground was to
enhance the gang’s reputation for violence, not to dissuade or
prevent him from using his cell phone to call the police. These
distinct acts of violence were not incidental to the attempted
witness dissuasion. They were gratuitous, extra, and may be
separately punished without offending section 654.” (Galvez, at
p. 1263; see also People v. Cleveland, supra, 87 Cal.App.4th at
pp. 271–272 [section 654 inapplicable when defendant repeatedly
hit a feeble, unresisting victim on the head with a two-by-four
board, using more force than necessary to achieve robbery];
People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299–1300.)
Pena argues that because the trial court stayed Estrada’s
and Flores’s sentences for burglary and assault, his sentence
should also be stayed. This argument is unavailing. Pena’s
burglary sentence was stayed. Unlike Pena, Flores and Estrada
were convicted and sentenced on the torture count. Thus, as to
them, the court presumably concluded the assault and the torture
were carried out pursuant to a single objective. The court did not
stay the robbery charge for any of the defendants. Even if
relevant, the sentences imposed on Pena’s codefendants do not
support his argument.
b. Imposition of the upper term
Pena next contends the trial court abused its discretion by
imposing the upper term on the assault count and the attached
gang enhancement. He argues that two of the four factors the
court relied upon—that the victim was vulnerable, and that the

33
crime involved planning—were not supported by substantial
evidence.
Section 1170, subdivision (b) provides that when a statute
provides for three possible terms, the choice of the appropriate
term rests within the trial court’s discretion. “Sentencing courts
have wide discretion in weighing aggravating and mitigating
factors.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258; see
Cal. Rules of Court, rule 4.420(b).) A court may base an upper
term sentence upon any aggravating circumstance that it deems
significant, as long as it is reasonably related to the sentencing
decision. (People v. Weber (2013) 217 Cal.App.4th 1041, 1063–
1064.) A single aggravating factor will support an upper term
sentence. (People v. Osband (1996) 13 Cal.4th 622, 728; People v.
Weber, at p. 1064; People v. Nicolas (2017) 8 Cal.App.5th 1165,
1182.)
We review a trial court’s sentencing choices for abuse of
discretion and reverse only when there is a clear showing the
sentence is arbitrary or irrational. (People v. Sandoval (2007) 41
Cal.4th 825, 847; People v. Ogg (2013) 219 Cal.App.4th 173, 185.)
A court abuses its discretion if it relies upon circumstances that
are not relevant to the decision or that otherwise constitute an
improper basis for decision. (People v. Sandoval, at p. 847; People
v. Weber, supra, 217 Cal.App.4th at pp. 1063–1064.) The burden
is on the party attacking the sentence to clearly show the trial
court’s decision was irrational or arbitrary. (People v. Pearson
(2019) 38 Cal.App.5th 112, 116; People v. Lai, supra, 138
Cal.App.4th at p. 1258.)
Pena did not object below that the circumstances he now
challenges were unsupported by the evidence, and his contentions
have been forfeited. “ ‘A party in a criminal case may not, on

34
appeal, raise “claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices” if the
party did not object to the sentence at trial. [Citation.] The rule
applies to “cases in which the stated reasons allegedly do not
apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular
sentencing factor, misweighed the various factors, or failed to
state any reasons or give a sufficient number of valid reasons.” ’ ”
(People v. Scott (2015) 61 Cal.4th 363, 406; People v. Scott (1994)
9 Cal.4th 331, 353; People v. Kidane (2021) 60 Cal.App.5th 817,
826; People v. Sperling (2017) 12 Cal.App.5th 1094, 1100–1101.)
Anticipating this hurdle, Pena contends that if the issue
was not preserved, his trial counsel provided ineffective
assistance by failing to interpose the appropriate objections. To
establish ineffective assistance, a defendant must show both that
counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and that
counsel’s deficient performance resulted in prejudice, that is,
there is a reasonable probability that, but for counsel’s errors,
defendant would have achieved a more favorable result. (People
v. Bell (2019) 7 Cal.5th 70, 125.)
Pena has not met these requirements here. First, we are
not convinced that the two challenged factors were unsupported
by the evidence. A victim is particularly vulnerable when he or
she is vulnerable in a special or unusual degree, to an extent
greater than in other cases, and is “ ‘defenseless, unguarded,
unprotected, accessible, assailable . . . susceptible to the
defendant’s criminal act.’ ” (People v. Clark (1990) 50 Cal.3d 583,
638; People v. Smith (1979) 94 Cal.App.3d 433, 436.) Such was
the case here. Hugo was attacked in his home, at 2:00 a.m., a

35
time and place in which one’s guard is normally down. Due to
the late hour, he was particularly susceptible to the crimes: the
assailants could force their way into the duplex without
attracting the attention of neighbors or pedestrians who might
have called for help. Hugo’s home was invaded by a group of
gang members, including Pena, who outnumbered him and
prevented the other persons in the duplex from coming to his
assistance and stopped him from escaping until after he had been
beaten and tortured. These facts were sufficient to demonstrate
vulnerability.
Pena’s arguments to the contrary are not persuasive. The
fact Hugo’s previous interactions with Nieto and Pena were
friendly arguably served to make him more, rather than less,
vulnerable, in that their presence may have initially made him
unlikely to anticipate the brutal assault that followed. That
Hugo happened to be awake, and was able to exercise heroic
efforts to push the drill away from his eyes, does not demonstrate
a lack of vulnerability. He was not able to successfully defend
against the attack: the gang’s assault necessitated his two-day
hospital stay, and resulted in lingering effects still present at the
time of trial, over two years later. The fact he escaped, rather
than being further harmed or forced into the trunk of the waiting
car, was merely fortuitous.
We are also not convinced by Pena’s argument that the
crime “reeked of a lack of planning.” Estrada demanded guns
and money from Hugo prior to the attack; when his demand went
unfulfilled, he and Flores planned an attack for the middle of the
night; recruited other gang members to assist; removed the
surveillance camera before leaving; and had a car and a large

36
knife waiting behind the duplex to complete their nefarious
purposes. These facts were sufficient to show planning.
Moreover, even if, as Pena argues, the “planning” factor
cannot be attributed to him because he was pressed into service
at the last minute, he has failed to show a more favorable result
was likely even had his counsel objected. In addition to the
planning and vulnerability factors, the court also based its
imposition of the upper term on the facts Pena had served a prior
prison term, and his prior convictions were numerous and
increasing in seriousness. Pena does not challenge the
sufficiency of the evidence to support these findings, and his
probation report indicates their accuracy. Additionally, the
probation report indicates his prior performance on probation
was unsatisfactory. Thus, even apart from the challenged
circumstances, there were enough aggravating factors to support
the trial court’s sentencing choices. (See Cal. Rules of Court, rule
4.421(b).) An objection from defense counsel would therefore
have been futile. “Failure to raise a meritless objection is not
ineffective assistance of counsel.” (People v. Bradley (2012) 208
Cal.App.4th 64, 90.)

37
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

KALRA, J.*

* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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