P. v. Herrera
Filed 7/8/13 P. v. Herrera CA2/8
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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER HERRERA,
Defendant and Appellant.
B236620
(Los Angeles
County
Super. Ct.
No. BA371819)
APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.
Monica
Bachner, Judge. Affirmed.
Alan
Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________
A jury convicted Christopher
Herrera (appellant) of attempted, willful, deliberate, and premeditated murder
(count 1; Pen. Code, §§ 664/187, subd. (a));href="#_ftn1" name="_ftnref1" title="">>[1]
and shooting from a motor vehicle (count 2; § 12034, subd. (c)), with
allegations as to both counts that the offenses were committed for the benefit
of a criminal street gang
(§ 186.22, subd. (b)(1)(C)).href="#_ftn2"
name="_ftnref2" title="">[2] We affirm the judgment.
FACTS
On May
25, 2010, Los Angeles Police Department (LAPD) Officers Rick Corpel and Jose
Merida witnessed a drive-by shooting of two pedestrians. The officers followed appellant’s car for
about four or five houses waiting for a potential stolen vehicles report. Appellant’s vehicle approached two
pedestrians, a male and a female, walking on the sidewalk. Both officers heard gunshots and saw muzzle
flashes coming from inside appellant’s car.
The male pedestrian fell to the sidewalk and the female pedestrian
screamed.
Appellant sped off and dropped a gun
out of the car. The officers radioed for
help and pursued the car with its lights and sirens on. After a short high speed chase, appellant
lost control of the car and crashed into parked cars. Appellant fled the vehicle immediately after
the crash. Torres stepped out of the car
yelling, “Don’t shoot me. Don’t shoot
me. I’ve been shot.†The officers took Torres into custody
and discovered that he had suffered a gunshot wound inflicted days before.
Appellant fled to the home of Santiago M. on South Soto Street. Santiago was an associate of the
White Fence gang and his moniker was “Silent.â€
Appellant knocked on the window and asked Santiago to let him inside. Appellant was breathing hard and appeared as
if he had been running. Appellant was
bleeding. Santiago heard appellant praying in
English but he did not understand what he was saying. Santiago’s sister, Ramona M. heard
appellant mumbling, saying, “I’m sorry,†“I fucked up,†and “I think I shot
some fool.â€
Officer Corpel radioed for a K-9
unit. When the K-9 arrived, it picked up
a visible blood trail leading down the street to Santiago M.’s home on south Soto Street. Officers followed the trail to find blood
splattered on the concrete sidewalk in front of Santiago’s door. Santiago guided officers through his
home. The officers found appellant,
bleeding “profusely from the left hand.â€
Officer Corpel requested assistance for appellant’s injury and placed
him into custody. Torres and appellant
both admitted membership in the White Fence gang.
A black nine-millimeter pistol was
recovered on the ground near the scene of the car crash. Officer Corpel identified the gun as the
weapon that appellant tossed from his vehicle.
The officers also found two spent shell casings in appellant’s car. A third was found when the car was
impounded. All the shells were shown by
scientific methods to have been ejected from the nine millimeter that officers
found on the street.
The victim, Juan Hernandez, suffered
a wound in his left thigh and was hospitalized.
Detective Ernest Garcia interviewed him and photographed his href="http://www.sandiegohealthdirectory.com/">injury. Hernandez was not available to testify at
trial, nor was the female pedestrian who accompanied him.
The prosecution presented evidence
from a gang expert to prove the shooting was for the benefit of the White Fence
criminal street gang. The gang evidence
showed that appellant was an admitted member of the White Fence gang and had
gang-related tattoos on his body. His
moniker was “Lil One.†Torres also
admitted ties to the White Fence gang; his moniker was “Neto.†The White Fence gang claims territories in East Los Angeles, Northeast Los Angeles and Hollywood. Some of their territory boarders the Cuatro
Flat’s gang territory. The shared
boarder causes a bitter rivalry between the two gangs. Officer Jacob Avalos testified that Juan
Hernandez actively participated in Cuatro Flats and goes by the gang moniker
“Scooby.â€
Before
the shooting in this case, Cuatro Flats members shot Torres in White Fence
territory. As a result, White Fence
members sought to perform retaliatory shootings against Cuatro Flats
members. Officer Avalos testified that
Cuatro Flats increased their presence in White Fence territory. He also noticed increased Cuatro Flats gang
graffiti in White Fence territory.
Gangs claim territory by marking
property in the area with graffiti, a
practice called “tagging.†Gang
members include their own gang moniker on the graffiti they create to show
allegiance. Officer Avalos testified he
had never heard of a gang moniker included in graffiti where the gang member
was not present during the tagging.
The night of the shooting in this
case, officers noticed gang graffiti outside Santiago’s home, where appellant was
found after the crash. The graffiti
referenced the White Fence gang and included the monikers “Lil One†and
“Neto.†Next to the White Fence
graffiti, Cuatro Flats graffiti had been crossed out, demonstrating disrespect
for that gang. Above the crossed out
Cuatro Flats name, was written “187†– the Penal Code section for murder.
Appellant testified on his own
behalf at trial. He admitted he joined
the White Fence gang when he was 15 years old, but said he did so only after he
was pressured by his friends. Most of
appellant’s tattoos were also the result of peer pressure; however, one tattoo
of a “C†on his ring finger stood for “Crystal,†his girlfriend. Crystal T. became his girlfriend when he was
16 years old and she was 21. Appellant
and Crystal lived together beginning when he was 17.
Appellant met Juan “Scooby†Hernandez
when he was 16 years old, approximately two years before the shooting. He testified that Hernandez had no
affiliation to Cuatro Flats but that the two of them talked and smoked
marijuana together. Appellant introduced
his girlfriend Crystal to Hernandez.
At “some point,†appellant started
to make a change in his life. He began
drug rehabilitation and working in the liquor store at the Staples Center. He kicked Crystal out of his home because she
had her own drug problem. After that,
appellant saw Crystal being affectionate with
Hernandez at a restaurant. Appellant
argued with Hernandez and then left.
Around the time of the shooting,
appellant received calls from Hernandez in which he claimed to be “fucking
[appellant’s] mom and fucking [appellant’s] sisters.†Appellant grew angry after receiving the
inflammatory phone calls, but he did not react because he was no longer dating Crystal. However, Hernandez wanted to “square†the
conflict with appellant. So, he accepted
Hernandez’s invitation to meet him at an abandoned house in White Fence
territory where Torres lived. When
appellant arrived, Hernandez said “jump bitch,†pulled out a hand gun, and shot
at appellant’s feet. Appellant jumped to
avoid any harm and quickly left. Later that
day, he bought a gun from a friend.
Appellant went to Torres’s abandoned
house to discuss the incident because Torres was close with Hernandez. Appellant and Torres had some food and beer
and decided to drive over to appellant’s sister’s house at about 1:00
a.m. En route to his sister’s home, appellant saw
Hernandez walking down the road. Without
discussing his plan with Torres, appellant pulled the car over about 5 to 10
feet from Hernandez. He pulled a
gun from under the seat, yelled “Jump, bitch,†and fired two rounds at the
ground to scare Hernandez. Appellant
heard Hernandez scream, which made appellant think Hernandez had been hit by
one of the rounds
Appellant glanced around after the
shooting and saw the police car behind him.
He sped away, threw the gun out the window and crashed his car. He left Torres in the car and ran to Santiago’s home, where he hid in the
bedroom and remarked that he had “fucked up.â€
Appellant denied that the attack was
gang related or done with intent to kill.
Instead, he was retaliating for what Hernandez did and meant only to
intimidate him. Further, Appellant
denied that he “tagged†the graffiti outside Santiago’s home. He testified that the prosecution’s gang
expert confused the tag “Littles†for “Lil One,†and therefore he did not
participate in the graffiti.
The jury convicted appellant. Appellant filed a href="http://www.mcmillanlaw.com/">timely appeal.
>DISCUSSION
Appellant contends his conviction for attempted
premeditated murder must be reversed, or the premeditation finding reversed,
because the trial court erred in admitting photographs of the graffiti on the
wall of Torres’ house.href="#_ftn3"
name="_ftnref3" title="">[3] As noted, the graffiti referenced the White
Fence gang and included the monikers “Lil One†(appellant) and “Netoâ€
(co-defendant Torres). Next to the White
Fence gang graffiti, Cuatro Flats graffiti was crossed out and “187â€â€”the Penal
Code section for murder – was placed above that crossed out graffiti. Appellant argues the graffiti was not
properly authenticated as having been written by him, and that admission of the
photographs was highly prejudicial given his defense that the shooting was not
gang-related and was not committed with the intent to kill. We disagree.
Graffiti is a writing (Evid. Code, §
1410.5, subd. (a)); and must be authenticated as a prerequisite to
admissibility. (People v. Marshall (1996) 13 Cal.4th 799, 832-833 (>Marshall); Evid. Code, § 1401; see also
Evid. Code, § 403, subd. (a)(3).)
Authentication requires proof by a preponderance of evidence that the
writing is what the proponent of the evidence claims. (Marshall,
at pp. 832-833; Evid. Code, § 1400.)
There is no strict requirement or restriction on how a party
authenticates a writing. (See Evid.
Code, § 1410.) A party may validly
authenticate a writing by circumstantial evidence; its content and location are
valid means of proof. (>People v. Gibson (2001) 90 Cal.App.4th
371, 383.) We review the lower court’s
determinations that sufficient facts have been presented for admissibility for
an abuse of discretion. (>People v. Lucas (1995) 12 Cal.4th 415; >People v. Smith (2009) 179 Cal.App.4th
986, 1001.)
We find People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin) instructive.
In Olguin the trial court
admitted rap lyrics found in a defendant’s home. (Id. at
p. 1373.) The lyrics were handwritten,
referenced the defendant’s gang moniker, his gang membership and referred to a
nickname derived from defendant’s first name.
(Id. at
p. 1372.) The Court of Appeal
agreed, ruling that regardless of when the lyrics were written, “[b]oth the
content and location of these papers indentified them as the work of [the
defendant].†(Id. at p. 1373.)
The facts providing authentication
here were similar. Officers Corpel and
Merida testified the graffiti was outside the building where appellant fled and
was found after shooting Hernandez. The
building was home to an affiliate in appellant’s White Fence gang. The gang expert testified the gang monikers
were those of appellant and Torres. Officer Avalos testified that he had never
heard of a gang moniker included in graffiti where the gang member was not
present at the tagging. Appellant’s
testimony that the graffiti did not relate to him went to the weight of the
evidence, but did not undermine its admissibility. The trial court did not abuse its discretion
when finding there was sufficient circumstantial evidence that appellant was
either present when the graffiti was written or authored it himself.
Even if there were error in admitting
the graffiti, it was harmless. The
erroneous admission of unauthenticated evidence is reversible only where the
defendant can show he would have achieved a more favorable result had the
evidence been excluded. (>People v. Beckley (2010) 185
Cal.App.4th 509, 517; and see also Cal. Const., art VI § 13; Evid. Code,
§ 353, subd. (b); People v. Watson (1956)
46 Cal.2d 818, 836.) Appellant’s
arguments on appeal fail to persuade us that he would have had a more favorable
result at trial if the gang graffiti evidence had been excluded.
First, we agree with respondent that
the jury’s failure to reach a verdict on Torres, appellant’s co-defendant,
shows that the jury did not give the graffiti evidence significant weight as
proof of the substantive offenses. Appellant’s moniker and Torres’s moniker both
appeared in the graffiti, but the jury only convicted appellant. Torres’s defense was that he did not know the
shooting was going to take place and thus could not have been an aider and
abettor. Appellant admitted he did the
shooting, but denied premeditation and denied it was gang-related. We see little if any distinction in the
importance of the graffiti to either of the defendants’ cases as to the
substantive offenses, but the jury convicted appellant and could not reach a
verdict as to Torres. Clearly, the jury
did not consider the photographic graffiti evidence the linchpin to
conviction.
Appellant
argues he would have achieved a more favorable result because “the sum
total of the unauthenticated graffiti indicated a clear planned intent to kill
a Cuatro Flats gang member.†We view the
record differently. Other evidence in
the record showed with more weight that appellant intended to and attempted to
kill Hernandez. Appellant had reason to
retaliate against Hernandez because he was a Cuatro Flats gang affiliate. Appellant admitted he was a member of the
White Fence gang, and expert testimony outlined the tensions between White
Fence and Cuatro Flats. Appellant was
armed with a gun and in the car with Torres, who had been shot days earlier by
a Cuatro Flats gang member. Hernandez
shot at appellant earlier the same day.
Thereafter, appellant immediately bought a gun and used it within hours
to retaliate against Hernandez. In
addition, Hernandez was the man with whom his live-in girlfriend began dating
after the two split up. Added to that,
Hernandez repeatedly told appellant that he was “fucking†his mother and his
sisters. Given such evidence,
appellant’s argument fails to convince us that the photographed graffiti caused
the jury to find intent, premeditation or deliberation.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.
id=ftn1>
href="#_ftnref1"
name="_ftn1" title="">[1]> All
further section references are to the Penal Code except as noted.
id=ftn2>
href="#_ftnref2"
name="_ftn2" title="">[2]> Andrew
Torres faced the same charges but the jury was unable to reach a verdict as to
him; he is not involved in the current appeal.