P.v . Contreras





Filed 4/27/11 P.v . Contreras CA2/3







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. NOE CONTRERAS, Defendant and Appellant.

B217968 (Los Angeles County Super. Ct. No. BA337794)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION
A jury convicted defendant and appellant Noe Contreras of three counts of attempted murder, three counts of assault with a firearm, and of evading an officer, and the jury found true gang and personal gun-use allegations. Defendant makes three contentions on appeal: first, the trial court erred by not bifurcating the gang allegations; second, the court should have excluded prior crimes evidence; and, third, the court erred by instructing the jury on aiding and abetting. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The prior November 2007 incident.
On November 26, 2007, Los Angeles County Deputy Sheriff Thomas Maese stopped a car because it had committed traffic violations. Three people were in the car, including defendant, who was in the rear seat behind the front passenger. Maese saw defendant drop a large object behind the driver's seat; when Maese searched that area he found a pistol grip shotgun. A second shotgun was in the front passenger compartment. The shotguns were loaded and ready to fire. Maese also found a digital camera in the car. Defendant was in the photographs with other Big Hazard gang members. All three people in the car said they were members of the Big Hazard gang.
B. The shootings on March 8, 2008.
About four months later, on March 8, 2008, at approximately 10:00 p.m., Jonathan Romero, Alfredo Jimenez, and Guillermo Moreno were walking to a party. Romero, Moreno, and Jimenez were not gang members. They were young Hispanic men with closely cropped hair.
The young men were at Malabar Street and Mott Street when a four-door gray car stopped behind them. Four guys were in the car. Jimenez saw the front passenger get out, and then he heard a bang; he was shot in his eye and back with pellets. Romero heard gunshots, and he was hit in the face and leg with pellets. Romero, Jimenez, and Moreno (who was not injured) ran to a house on Mott, where someone called for help. Officers arrived at the scene of the shooting about five minutes after it occurred. Three spent shell casings were found in the well-lit area.
At about 10:00 p.m., City of Los Angeles Police Officer Steve Zavala responded to the house on Mott, where Romero, Jimenez, and Moreno had fled. Moreno told him that a four-door gray car stopped behind him and that the front passenger got out of the car. He described the front passenger as a male Hispanic, 5 feet 7 inches tall with a shaved head, and wearing a blue jersey. Moreno said that the rear right passenger wore a black T-shirt. Officer Zavala also talked to Romero, who told him that the front passenger had a black gun. He described him as a male Hispanic, 5 feet 7 inches tall, 20 to 25 years old with a dark complexion and light goatee, and wearing a blue Dodger jacket, white T-shirt and dark pants. Romero said he could identify him if he saw him again.[1] Romero also saw a male wearing a gray hooded sweatshirt get out from the right rear of the car. In addition to these two men, Romero said there were two other people in the car. Officer Zavala later spoke to Jimenez in the hospital. Jimenez said that he saw a male Hispanic about 20 years old with a shaved head wearing a white T-shirt with blue stripes get out of the front passenger side.[2] He also saw a male Hispanic wearing a black T-shirt in the right rear of the car.
Officers Jorge Alfaro and Jacob Avalos were at the scene of the shooting but went to the Ramona Gardens Housing Project, which was in Big Hazard Neighborhood gang's territory. The officers saw a four-door gray car driving fast with two male Hispanics inside with shaved heads. With the police car's high beams and then sirens on, the officers followed the car, which tried to evade them. The officers pursued the car, which sped up and ran through stop signs before stopping on a dead-end street. The driver and passenger got out, and the driver ran towards the officers. The officers pursued the driver, but lost him. Officer Avalos said the driver wore a white T-shirt and long, light colored plaid shorts. The next day, Officers Alfaro and Avalos reviewed a photographic six-pack and identified defendant as the driver. On the front passenger floorboard of the gray four-door Pontiac was a spent shotgun casing. The casing from the car and the casings from the scene of the shooting were fired from the same shotgun. Fingerprints were lifted from the car but none matched defendant's.
The day after the shooting, Detective Gabriel Barboza went to the hospital to talk to Romero and Jimenez. When shown a photographic six pack, Romero circled the photograph of defendant and said, â€