<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <br /> <br /> <p><b>P. v. </b><b>Valdez</b></p><br /> <br /> <p>Filed 12/14/07 P. v. Valdez CA5</p><br /> <br /> <p><b><u>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS</u></b></p><br /> <br /> <p></p><br /> <br /> <p>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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115<strong>.</strong></p><br /> <br /> <p></p><br /> <br /> <p></p><br /> <br /> <p></p><br /> <br /> <p><b>IN THE COURT OF APPEAL OF THE STATE OF </b><b>CALIFORNIA</b></p><br /> <br /> <p><b>FIFTH APPELLATE DISTRICT</b></p><table border=0 cellspacing=0 cellpadding=0><tr><td width=360 valign=top><br /> <br /> <p>THE PEOPLE,</p><br /> <br /> <p>Plaintiff and Respondent,</p><br /> <br /> <p> v.</p><br /> <br /> <p>RUBEN VALDEZ,</p><br /> <br /> <p>Defendant and Appellant.</p></td><td width=274 valign=top><br /> <br /> <p>F052231</p><br /> <br /> <p>(Super. Ct. No. VCF148363)</p><br /> <br /> <p><b>OPINION</b></p></td></tr></table><br /> <br /> <p><b><u>THE COURT</u></b><a href="#_ftn1" name="_ftnref1" title="">^*</a></p><br /> <br /> <p> APPEAL from a judgment of the <a href="http://www.fearnotlaw.com/">Superior Court of Tulare County</a>. Joseph A. Kalashian, Judge.</p><br /> <br /> <p> Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.</p><br /> <br /> <p> Edmund G. Brown, Jr., <a href="http://www.fearnotlaw.com/">Attorney</a> General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.</p><br /> <br /> <p>-ooOoo-</p><br /> <br /> <p><b>INTRODUCTION</b></p><br /> <br /> <p> Appellant Ruben Valdez contends the evidence was insufficient to sustain his conviction for violating Penal Code section 246,<a href="#_ftn2" name="_ftnref2" title="">^{^[1]}</a>shooting at an occupied vehicle. In addition, Valdez contends the trial court erred by admitting an excessive amount of evidence of his <a href="http://www.mcmillanlaw.us/">gang-related activities</a>. We will affirm the judgment.</p><br /> <br /> <p><b>FACTUAL AND PROCEDURAL SUMMARY</b></p><br /> <br /> <p> Valdez was charged with six crimes, with the allegations that all six were committed for the benefit of a <a href="http://www.fearnotlaw.com/">criminal street gang</a>. Valdez pled no contest to four of the charges and admitted the gang enhancements appended thereto. The charges to which Valdez pled were <a href="http://www.mcmillanlaw.us/">carrying a loaded firearm, unlawful gun activity, resisting an executive officer, and resisting a peace officer</a>. Trial by jury proceeded on the charges of attempted willful, deliberate, and premeditated murder and shooting at an occupied vehicle. </p><br /> <br /> <p> On June 17, 2005, Octavio Juarez was visiting a friend, Misty, at a house on G Street in Tulare. When he arrived, Valdez was out front. Shortly after his arrival, Valdez asked Juarez for a ride. Juarez agreed to give Valdez a ride. Juarez climbed into his Honda Accord, started the engine, and turned the wheels to pull away from the curb. At that point, Valdez opened the passenger door and fired multiple gunshots at Juarez. Juarez reacted by accelerating quickly and pulling away. </p><br /> <br /> <p> A short distance away from the house on G Street, Juarez crashed into several parked cars at a convenience store. A silver Dodge Neon pulled up behind Juarezs car. The four occupants of the Neon hopped out and ran to Juarezs car, where they removed two backpacks and returned to the Neon. </p><br /> <br /> <p> Police found a .22-caliber slug on the floorboard of Juarezs car. The police located the Neon on G Street. Paint on the Neons bumper indicated it had collided with Juarezs car. At the hospital, Juarez positively identified Valdez as the shooter from a photo lineup. </p><br /> <br /> <p> On July 9, 2005, an officer conducted a traffic stop. As the officer was calling dispatch with the license plate and location, the occupants of the car, including Valdez, climbed out and began walking away. The officer ordered them to stop, drew his weapon, and ordered Valdez to the ground. Valdez was in possession of a handgun. </p><br /> <br /> <p> During the trial, Detective Edward Hinojosa testified as an expert in criminal street gangs. Hinojosa explained that the West Side Tula (WST) is a clique of the Nortenos. The WST and Nortenos in general wear red clothing and identify with the letter N, the number 14, and the huelga bird. The rival of the Norteno gangs are the Surenos, who wear blue clothing and identify with the letter M and the number 13. </p><br /> <br /> <p> Hinojosa testified that to become a gang member, individuals must commit crimes for the benefit of the gang. Typical criminal activities of the WST include homicide, attempted homicide, witness intimidation, robberies, rapes, burglaries, and narcotics trafficking. Hinojosa provided two specific examples of crimes committed by Nortenos; both involved shooting the victims. </p><br /> <br /> <p> Hinojosa opined that Valdez was a member of the Norteno gang and belonged to the WST clique. Hinojosa arrived at this conclusion based on Valdezs tattoos, gang moniker, and prior contact with law enforcement. Prior contact with law enforcement included admitting on questionnaires that he was a member of the WST and a Norteno and Valdezs various writings and statements while in previous custodial situations. </p><br /> <br /> <p> Hinojosa was of the opinion that Valdez shot Juarez, a suspected Sureno, for the benefit of the Norteno gang. </p><br /> <br /> <p><b>DISCUSSION</b></p><br /> <br /> <p> Valdez contends that the amount of evidence admitted pertaining to his gang- related activities was excessive and an abuse of the trial courts discretion. Valdez also contends that the evidence establishes that he was in the same car as Juarez when shots were fired and therefore his conviction for shooting at an occupied vehicle must be reversed. Neither contention is meritorious.</p><br /> <br /> <p><strong>I. Gang Activity Evidence</strong></p><br /> <br /> <p> Valdez acknowledges that gang activity evidence was relevant. His contention is that the evidence of gang activity admitted was excessive and an abuse of the trial courts discretion under Evidence Code section 352. </p><br /> <br /> <p> We review any ruling by a trial court on the admissibility of evidence for an abuse of discretion. (<i>People v. Alvarez</i> (1996) 14 Cal.4th 155, 201.) This standard is applicable both to a trial courts determination of the relevance of evidence as well as its determination under Evidence Code section 352 whether the evidences probative value is substantially outweighed by its prejudicial effect. (See, e.g., <i>People v. DeJesus</i> (1995) 38 Cal.App.4th 1, 32-33.) The abuse of discretion standard applies equally when the issue is the admission of gang evidence. (<i>People v. Champion</i> (1995) 9 Cal.4th 879, 922; <i>People v. Sandoval</i> (1992) 4 Cal.4th 155, 175.)</p><br /> <br /> <p> Evidence Code section 352 states that the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice. The courts discretion is abused only where there is a clear showing it exceeded the bounds of reason. (<i>People v. Olguin </i>(1994) 31 Cal.App.4th 1355, 1369 [admission of gang evidence over Evidence Code section 352 objection not disturbed on appeal unless decision exceeds bounds of reason].) [A]dmissible evidence often carries with it a certain amount of prejudice. (<i>Olguin, </i>at p. 1369.)</p><br /> <br /> <p> The evidence of gang affiliation and activity was relevant to establish motive for the underlying offenses and the requisite intent for the gang enhancements appended to the two contested counts. The trial court conducted a thorough Evidence Code section 352 hearing prior to ruling on the admissibility of the gang evidence. As a result of that hearing, the trial court precluded the prosecution from introducing evidence that Valdez previously had been incarcerated in the youth authority on an attempted murder charge. In addition, the trial court found that the <a href="http://www.fearnotlaw.com/">gang testimony</a> would not necessitate an undue consumption of time, as it was anticipated to take only two hours of court time. The trial court conceded that the gang evidence had a prejudicial effect, but ultimately concluded that the probative value of the gang evidence outweighed any prejudicial effect and the evidence was relevant to establish the continuing course of conduct with the criminal gang. </p><br /> <br /> <p> Having conducted a thorough Evidence Code section 352 hearing, ultimately allowing some gang evidence to be admitted while excluding or sanitizing other similar evidence, we conclude the trial court did not exceed the bounds of reason or abuse its discretion. (<i>People v. Olguin, supra, </i>31 Cal.App.4th at p. 1369.) </p><br /> <br /> <p> Even were we to assume, arguendo, that it was error to admit all of the gang evidence, we would find any error harmless. The applicable standard of prejudice is that articulated in <i>People v. Watson</i> (1956) 46 Cal.2d 818, 836; that is, whether it is reasonably probable a more favorable result would have been obtained in the absence of the claimed errors. (<i>People v. Champion</i>, <i>supra</i>, 9 Cal.4th at pp. 922-923.) Valdez concedes that some gang evidence had to be admitted; Juarez positively identified Valdez as the shooter; and the jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 1403 [limited purpose of evidence of gang activity]. In light of these facts, it is not reasonably probable a result more favorable to Valdez would have been obtained if less gang evidence had been admitted.</p><br /> <br /> <p><strong>II. Shooting at an Occupied Vehicle</strong></p><br /> <br /> <p> Valdez contends the evidence establishes that he and Juarez were in the same vehicle when shots were fired; therefore, the conviction for shooting at an occupied vehicle cannot be sustained. Assuming arguendo that Valdez is correct and that a gun fired from <i>within</i> an occupied vehicle cannot support a Penal Code section 246 conviction, the evidence supports the conviction in this case.</p><br /> <br /> <p> Valdez claims he cannot be convicted of violating Penal Code section 246 if he and Juarez were inside the same vehicle when the gun was fired. Valdez cites <i>People v. Stepney </i>(1981) 120 Cal.App.3d 1016 as supporting this theory. The facts of Valdezs case are more akin to the case of <i>People v. Jischke </i>(1996) 51 Cal.App.4th 552, where the defendant was convicted of violating Penal Code section 246 for firing a gun in his own apartment. The appellate court upheld the conviction, concluding that when the defendant fired the gun at his apartment floor, that floor was the ceiling of the apartment below him. Therefore, the defendant had fired at an occupied dwelling, specifically, the other apartment, even though the defendant had no intent to fire into or at that apartment. (<em>Jischke, </em>at p. 556.) </p><br /> <br /> <p> There were multiple shots fired in Juarezs direction. Only one .22-caliber slug was found inside Juarezs car. A reasonable inference is that the other slugs were outside the car because the other shots were fired from outside Juarezs car. At most, Valdez leaned down to look into the car, opened the door, and fired a shot toward Juarez, but never entered the vehicle. Even if Valdez were in close proximity to or touching Juarezs car, as when he opened the door, that would not preclude a conviction under Penal Code section 246 for firing at an occupied vehicle. (See <i>People v. Jischke, supra, </i>51 Cal.App.4th at p. 556.) </p><br /> <br /> <p><b>DISPOSITION</b></p><br /> <br /> <p> The judgment is affirmed.</p><br /> <br /> <p>Publication Courtesy of <a href="http://www.fearnotlaw.com/">California attorney referral</a>.</p><br /> <br /> <p>Analysis and review provided by <a href="http://www.mcmillanlaw.us/">Vista Property line attorney.</a></p><br clear=all><br /> <br /> <hr align=left size=1 width="33%"><br /> <br /> <p><a href="#_ftnref1" name="_ftn1" title="">^*</a> Before Vartabedian, Acting P.J., Levy, J. and Cornell, J.</p><br /> <br /> <p><a href="#_ftnref2" name="_ftn2" title="">^{^[1]}</a> All further statutory references are to the Penal Code unless otherwise specified. </p>