P. v. Leyba
Filed 7/18/12 P. v.
Leyba CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
IGNACIO LEYBA,
Defendant and Appellant.
C068671
(Super. Ct. Nos. 06F10056, 10F06425)
In case No. 06F10056, defendant
Ignacio Leyba entered a plea of no contest to
and granted probation.
In case
No. 10F06425, a jury convicted defendant of
murder, and being a felon in possession of a gun. It also sustained allegations of personal use
of a gun resulting in death or great bodily
intimidation. The trial court imposed an
indeterminate term of 72 years to life on the shooting counts and a concurrent
term for the gun possession. Pursuant to
Penal Code section 2933.2, the trial court awarded defendant credit only for
his actual days of presentence custody.
Based on this
conduct, the court also found defendant in violation of probation in case
No. 06F10056. It revoked probation
and imposed a concurrent sentence (awarding conduct credits equal to his
Defendant filed
a notice of appeal in both
cases. With respect to his 2010
offenses, he contends the trial court erred in denying his motion in limine to
exclude evidence of his gang associations.
We shall affirm the judgment in that case. He does not raise any issues in connection
with case No. 06F10056; we accordingly deem that appeal abandoned and
shall dismiss it.
FACTUAL AND PROCEDURAL BACKGROUND
On a Saturday
night in September 2010, defendant and a group of friends were at a bar. At last call, they decided to reconvene at
the home of one of their number.
En route to the
residence, defendant and two of the women from the group stopped at a
neighborhood liquor store. Also at the
liquor store were the murder victim, Oquitzin Bravo, the surviving shooting
victim, Jorge Lopez, and a third friend, all of whom were best friends working
together in construction; they originally were Mexican natives. They were en route home from a Folsom
Boulevard club.
As the two
shooting victims walked to the door (their third friend remaining behind in the
car because he was quite drunk), they began conversing with the women, who
invited them to the after-hours gathering.
The two victims returned to their car, and followed the women’s car to
the home and parked. The gathering was
in the backyard.
As the victims
and their friend approached the gate to the yard, the woman who had invited
them suggested that perhaps they all could go elsewhere; victim Lopez said it
was up to the women. Defendant and his
friend, David Goodier,
name="_ftnref1" title="">[1]
came up to them. Victim Lopez had
noticed them at the liquor store, and now realized they must have been there
with the women at the same time in a different car.
Defendant and
Goodier asked whether the group had any gang affiliation. Goodier may have said something to indicate
having a gang affiliation. Victim Lopez
told them that he and his friends were “pisas†(which he testified as meaning a
native Mexican not affiliated with any gang),
and asked if it was acceptable for them to join the gathering. At that point, everyone seemed welcoming to
victim Lopez
title="">[3]
and the question of gang affiliation did not come up again. Because of his drunken condition, the
victims’ friend simply sat down near the gate and played with a puppy. Four eyewitnesses described what happened
thereafter.
Victim Lopez
testified that he had been talking with a woman from whom he had bought
marijuana. He heard a commotion arise;
he looked over and saw defendant punching victim Bravo. There were two or three other people around
them. Victim Lopez went to victim
Bravo’s aid. Goodier intercepted him with
a punch. Victim Lopez did not recall his
other friend being involved in either fight.
Victim Lopez heard shots, and ran out the gate toward the front of the
house. As victim Lopez reached for his
phone to call 911, he saw defendant approach him. Behind him, two people were dragging victim
Bravo out of the backyard. Defendant had
a gun in his hand. Victim Lopez began to
approach victim Bravo; defendant raised his arm and shot victim Lopez, then ran
off. Defendant was the only dark-skinned
person present other than a pregnant woman, and victim Lopez was certain his
shooter was dark-skinned. He had never
described defendant as having dreadlocks.
His description to the police in English, which is not his primary
language, was meant to indicate the shooter’s hair was wavy or kinky. After everyone ran off, the victims’ other
friend emerged from the backyard.
Goodier’s
girlfriend described the victims and their friend as being in a good mood and
bringing beer with them to share. They
did not appear at all threatening. One
of the victims, who had mentioned he had been a Marine stationed in Iraq,
bought some marijuana from one of the women at the gathering and began to smoke
it with her. After coming out of the
house with Goodier, defendant’s friend Moreno (who lived in the house) walked
over to victim Bravo, who was over by the victims’ friend near the weight bench. Defendant was there as well. Victim Bravo had appeared to be asking
defendant about something; defendant responded by abruptly swinging at him. The girlfriend had not heard any angry words
or anything shouted that would explain the onset of the fight. When victim Lopez joined the fray in aid of
his friend, Goodier went over to confront him.
The brawls split apart; victim Bravo remained engaged with defendant
while the other four men moved out of the backyard. There were the sounds of two shots, and smoke
came from defendant’s hand. Victim Bravo
fell to the ground. Defendant ran out of
the backyard. Defendant moved toward the
other brawl in the front of the house, gun still in hand. Defendant fired the gun at victim Lopez and
then ran off. The girlfriend had not
seen defendant with a gun beforehand, or seen anyone pass him a gun.
On the following
day, Goodier’s girlfriend attended a barbeque that defendant hosted at his
home. He did not appear to be acting out
of the ordinary in any respect. When the
girlfriend asked about the shooting, defendant shrugged and said he had
“flipped†because he had not liked victim Bravo asking him about the
tattoos on his hands. He had meant only
to pistol-whip victim Bravo (which the girlfriend had not observed), but the
gun went off; at that point, defendant got mad and shot victim Bravo.
Defendant’s
friend Moreno had a gun in the house of the same caliber as a casing found out
front in the street. Moreno’s cohabitant
testified that she saw defendant shoot victim Bravo; she heard the victim ask
for help, but she ran into the house and did not call for aid. She did not come back out until the
paramedics arrived.
The defense
called the victims’ friend as a witness.
He testified that Goodier had beaten him up in the front yard. Goodier also pointed something in his hand at
the victims’ friend, who could not tell whether it was a knife or gun. He did not recall telling an officer on the
morning after that he had moved his head out of the way as Goodier fired a gun
twice, or telling him that Goodier had shouted that the Mexicans needed to
leave. He had seen victim Lopez dancing
with a woman before the fight started.
He did not see either shooting.
Although he had identified defendant at the time as having been at the
liquor store and the house, he did not recognize defendant at trial.
The detective
who had conducted the interview testified the victims’ friend had recalled that
“one of the people seemed to not be pleased that he was thereâ€; that victim
Lopez was dancing with a woman, which displeased the dark-skinned man he had
previously identified as defendant; that people (including defendant) then
attacked victim Lopez, at which point victim Bravo interceded; and that Goodier
attacked him with a knife. The victims’
friend had not seen any gun, but heard first two shots, then a third. Another officer, who had spoken initially
with the victims’ friend, told the detective that the victims’ friend had said
Goodier had a gun. When the detective
asked about this, the victims’ friend made clear that it was a knife, not a
gun. Yet another detective involved in
questioning the victims’ friend recalled that the latter had described Goodier
as having a knife, not a gun. The
victims’ friend had also been certain that defendant had not been fighting with
victim Bravo. Although he had identified
defendant in a photo from liquor store surveillance footage as being at the
house, he could not subsequently select defendant’s photo in an array.
Defendant did not
testify. In his statement to the police,
he denied any involvement in the shootings.
In the version of events on which he ultimately settled, he claimed that
he had been in the bathroom when all the tumult occurred, and fled when he came
outside and saw a body on the ground because he did not want any association
with whatever had happened.
DISCUSSION
Before trial,
defendant had moved to exclude the evidence of the discussion of
relevant on the issue of the “comfort level†the victims’ group felt in joining
in the gathering. Defense counsel
asserted that the issue of a concern about being welcome did not require the
subject of gang affiliation, which was irrelevant to the offense. The trial court stated that the factual
context was too vague at this point to make a definitive ruling, but it was
inclined to admit the evidence to explain why victim Lopez felt the need to
disclaim gang affiliations, and to give context to what seemed to be otherwise
an unprovoked attack.
On renewal
before trial of the motion to exclude, defense counsel again asserted Goodier’s
mention of an affiliation was incidental and prejudicial. The prosecution continued to assert that this
was relevant to the victims’ state of mind and might also have been toward the
end of determining whether the interlopers at the gathering were criminally
sophisticated. The trial court concluded
it was relevant to give context for the interaction between the two
groups.
The prosecutor
suggested in closing argument that
defendant and his cohort, Goodier, were bullies and thugs who intended to
victimize what they perceived to be pisas because they were anti-immigrant
(though she abjured any burden to establish a motive for the shootings). Towards this end, defendant and Goodier had
asked about any gang affiliation. The
prosecutor did not in any other respect claim that gang affiliation had anything
to do with the shootings.
Defendant
contends the trial court abused its discretion in admitting victim Lopez’s
testimony regarding the inquiry about whether he and his friends had any gang
affiliation, and Goodier’s vague allusion to his (or his cohorts’) gang
affiliation. Defendant claims it
generated reversible prejudice. We
disagree in both respects.
Defendant had
evinced scorn for pisas in his interview; learning that victim Lopez and his
friends were in fact pisas (in confirmation of defendant’s earlier observations
of them) would help prove a theory of a premeditated attack on them, though the
prosecutor at the close of evidence ultimately abandoned a theory of first
degree murder in connection with victim Bravo and conceded defendant had killed
rashly. Moreover, as the prosecutor
suggested, this inquiry would confirm that the men as pisas (rather than gang
members) would be easier prey for any violence if defendant intended to act on
this enmity. Victim Lopez’s efforts to
disavow any connection with a gang would not make sense without Goodier’s
reference to an affiliation. (See
137, 189 [challenged statements relevant as context for admissions].) Moreover, defendant denied being the
malefactor, and thus proof of motive helped establish his identity as the
shooter. (People v. Williams (1997) 16 Cal.4th 153, 193.)
In any event, we
do not discern any reversible prejudice from this testimony. It was brief and limited to the subject of a
claimed affiliation without any evidence of the nature of gang activity in
general or defendant’s participation in it.
To the extent it might have suggested to the jury that defendant had a
criminal disposition, the jury was able to distinguish among the counts regardless
of this suggestion (acquitting him of witness intimidation). (People
v. Williams (2009) 170 Cal.App.4th 587, 612-613.) The evidence arrayed against him otherwise
included two eyewitnesses to his shooting of victim Bravo, and the absolute
certainty on victim Lopez’s part that defendant had shot him. We are therefore convinced beyond a
reasonable doubt that the result would not have been any different in the
absence of the gang affiliation evidence.
DISPOSITION
The appeal in
case No. 06F10056 is dismissed. The
judgment in case No. 10F06425 is affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Goodier, the only Caucasian present, was
introduced as “White Boy.â€
name="_ftn2" title="">[2] This term was defined by defendant in his
statement to the police as meaning an illegal immigrant. He admitted that he had first noticed
them at the liquor store, and found their pisa mannerisms laughable.
