People v. ABASTA

112 Cal. Rptr. 2d 320, 92 Cal. App. 4th 896
CourtCalifornia Court of Appeal
DecidedMay 15, 2002
DocketB145552
StatusPublished

This text of 112 Cal. Rptr. 2d 320 (People v. ABASTA) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. ABASTA, 112 Cal. Rptr. 2d 320, 92 Cal. App. 4th 896 (Cal. Ct. App. 2002).

Opinion

112 Cal.Rptr.2d 320 (2001)
92 Cal.App.4th 896

The PEOPLE, Plaintiff and Respondent,
v.
Rudy Raymond ABASTA, Defendant and Appellant.

No. B145552.

Court of Appeal, Second District, Division Five.

October 4, 2001.
Review Granted January 3, 2002.
Review Dismissed May 15, 2002.

*321 Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, Brad D. Levenson, and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

Certified for Partial Publication[*]

TURNER, P.J.

I. INTRODUCTION

Defendant, Rudy Raymond Abasta, appeals from his conviction for attempted murder (Pen.Code,[1] §§ 664, 186, subd. (a)) and findings that he: personally used a dangerous weapon; personally inflicted great bodily injury; and committed the offense for the benefit of, at the direction of, and in association with, a criminal street gang. (§§ 12022, subd. (b)(1), 12022.7, subd. (a), 186.22, subd. (b)(1).) Defendant argues the trial court improperly instructed the jury with CALJIC No. 2.28 and sentenced him pursuant to section 186.22, subdivision (b)(1). In the published portion of this opinion, we address the question of whether Proposition 21 on the March 7, 2000, ballot violates the "single subject rule" of California Constitution, article II, section 8, subdivision (d). We conclude Proposition 21 does not violate the single subject rule.

II. BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal. Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) On April 14, 2000, Christopher Gibbs, an African-American, was 16 years old. He had just moved to Azusa with his parents. While Mr. Gibbs was walking in his new neighborhood in the early afternoon, he heard a car stop abruptly behind him. Mr. Gibbs turned around and saw defendant get out of the car. Defendant walked towards Mr. Gibbs. Defendant said: "What's up, fool. Where are you from?" Mr. Gibbs testified, "I told him I wasn't from anywhere." Defendant walked up to Mr. Gibbs. Defendant looked toward a nearby house. Mr. Gibbs looked in the same direction. Defendant then stabbed Mr. Gibbs in the back. Defendant ran toward the car. After defendant got into the passenger seat, the car drove away. Mr. Gibbs was able to return to his home before collapsing. Mr. Gibbs was hospitalized for three days. The stab wound penetrated Mr. Gibbs's lung and lacerated his liver. His lung collapsed. Mr. Gibbs positively identified defendant as the assailant at: a photographic lineup; a live lineup; the preliminary hearing; and at trial.

On October 25, 1996, defendant and two other Hispanic individuals assaulted Santoaine Carter and Reginald Prothro, both African-Americans, with a metal pipe outside a 7-Eleven convenience store. Azusa Police Officer Andy Sutcliffe and a partner observed the beating. They stopped their *322 police car and identified themselves. Defendant and his companions ran. They were chased by the officers. All three assailants, including defendant, were arrested.

There was testimony defendant was a gang member. Defendant's gang regularly engaged in murders, robberies, and car jackings. Defendant's gang had a general dislike of African-Americans. Defendant had previously attacked African-Americans. This was consistent with his attack on Mr. Gibbs. Further, when interviewed by the authorities after his arrest, defendant admitted he was on probation for a hate crime.

Defendant testified in his own defense. Defendant denied stabbing Mr. Gibbs. Defendant acknowledged his arrest and guilty plea related to the assault on Mr. Prothro and Mr. Carter. Defendant had moved in with his fiance, Sophia Olmeda Luna in March 2000. Ms. Olmeda Luna lived in Rialto. On the day of his testimony, defendant recalled being at home with his "`mother-in-law,'" Joanne Sanchez-Luna, on April 14, 2000. Defendant remembered having attempted to cheer her because it was the anniversary of her husband's death. Defendant testified that he worked with an individual identified only as "Mr. Mario" doing landscaping later that day. Defendant was a member of a gang which displayed a general dislike for African-Americans in the City of Azusa.

Ms. Olmeda Luna testified that defendant was generally with her every morning and night. She did not remember specifically where defendant was on April 14, 2000. Ms. Olmeda Luna remembered that her mother was upset around that date regarding her deceased father's birthday. Defendant was not present when Ms. Olmeda Luna and Ms. Sanchez-Luna spoke about her father. Ms. Sanchez-Luna testified that defendant was at her home on April 14, 2000. She was depressed that day because a song she heard reminded her of her deceased husband. Defendant tried to cheer her. The birthday of Ms. Sanchez-Luna's husband had been April 12. Defendant had worked earlier that day with Mario Rosas.

As noted previously, defendant was convicted of attempted murder. He received a sentence on the attempted murder charge of nine years. Additionally, he received: a 3-year term for great bodily injury pursuant to section 12022.7, subdivision (a); 10 years because the attempted murder arose out of gang activity pursuant to section 186.22, subdivision (b)(1); and an additional 1-year term for deadly weapon use pursuant to section 12022, subdivision (a). Therefore, defendant's total term was 23 years.

III. DISCUSSION

A. CALJIC No. 2.28[**]

Defendant argues the provisions of Proposition 21, known as "The Gang Violence and Juvenile Crime Prevention Act," adopted by California voters on March 7, 2000, violates the "single subject rule" in article II, section 8, subdivision (d), of the California Constitution which provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." The California Supreme Court has held: "`"`[A]n initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are "reasonably germane" to each other,' and to the general purpose or object of the initiative."'" (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157, 90 Cal. Rptr.2d 810, 988 P.2d 1089, quoting Legislature *323 v. Eu (1991) 54 Cal.3d 492, 512, 286 Cal.Rptr. 283, 816 P.2d 1309, original italics; see also Raven v. Deukmejian (1990) 52 Cal.3d 336, 346, 276 Cal.Rptr. 326, 801 P.2d 1077; Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1097-1098, 240 Cal.Rptr. 569, 742 P.2d 1290; Amador Valley Joint Union High Sch. Dist. v. State Bd. Of Equalization (1978) 22 Cal.3d 208, 229-230, 149 Cal.Rptr.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Michael Davis Taylor v. J.S. Stainer, Warden
31 F.3d 907 (Ninth Circuit, 1994)
Legislature v. Eu
816 P.2d 1309 (California Supreme Court, 1991)
Brosnahan v. Brown
651 P.2d 274 (California Supreme Court, 1982)
Senate of the State of Cal. v. Jones
988 P.2d 1089 (California Supreme Court, 1999)
Harbor v. Deukmejian
742 P.2d 1290 (California Supreme Court, 1987)
Fair Political Practices Commission v. Superior Court
599 P.2d 46 (California Supreme Court, 1979)
Raven v. Deukmejian
801 P.2d 1077 (California Supreme Court, 1990)
Yoshioka v. Superior Court of Los Angeles County
58 Cal. App. 4th 972 (California Court of Appeal, 1997)
San Mateo County Coastal Landowners' Ass'n v. County of San Mateo
38 Cal. App. 4th 523 (California Court of Appeal, 1995)
People v. Osband
919 P.2d 640 (California Supreme Court, 1996)

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Bluebook (online)
112 Cal. Rptr. 2d 320, 92 Cal. App. 4th 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-abasta-calctapp-2002.