P. v. Zuniga

Filed 12/12/08 P. v. Zuniga CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed.

Mark W. Fredrick for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Pamela Ratner Sobeck, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of first degree murder (Pen. Code, 187, subd. (a))^[1](count 1) and discharge of a firearm at an occupied motor vehicle ( 246) (count 2). The jury also found true the special circumstance allegations that defendant intentionally discharged a firearm from a motor vehicle ( 190.2, subd. (a)(21)) in the commission of count 1 and that defendant discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)) in the commission of counts 1 and 2. As to count 1, defendant was sentenced to life without the possibility of parole plus 25 years to life for the great bodily injury enhancement; as to count 2, defendant was sentenced to five years plus 25 years to life, to run concurrently with count 1. On appeal, defendant contends the trial court prejudicially erred in admitting evidence of his gang moniker, gang membership, and uncharged bad acts. We reject this contention and affirm the judgment.

I

FACTUAL BACKGROUND

On October 31, 2003, defendant was driving in his Suburban on Sixth Street in the City of Corona with John Garcia, Cassandra Sanchez, and Jennifer Piceno when he saw Michael Ware, who apparently owed defendant money for drugs, driving in Wares car with his friends. Defendant pulled up next to Wares car. As they spoke to each other, with drivers doors facing each other, defendant and Ware began to argue. Defendants companion, Garcia, brandished what looked like an Uzi. Wares companion, Cody Alva, who had exited Wares vehicle to approach defendants, quickly got back into Wares car. Alva saw defendant reach down and retrieve a silver Smith and Wesson .38-caliber revolver with a short barrel and laser sight. Ware said he did not want any trouble and began to drive away.

Defendant drove away in the opposite direction before making a U-turn to pursue Ware, saying, Im going to get him. When defendant caught up to Wares vehicle, defendant reached across in front of Sanchez, who was in the front passenger seat, and fired three or four shots from his .38-caliber revolver at Wares vehicle. Alva, noticing a red dot on his left side and believing it to be the laser pointer from the gun he had seen earlier, ducked down in the back seat. Defendant hit Ware in the head, killing him.

Wares car crashed into a light pole. Meanwhile, defendant sped off, at some point switching places with Sanchez. Later, defendant told Sanchez and Piceno not to say anything. Alva gave a detailed description of defendant and Garcia to the police after the shooting and subsequently identified defendant as the shooter from a photographic lineup. Cassandra Wedin, a witness who was at the scene of the shooting and knew defendant from having previously purchased drugs from him, heard the gunshots and saw defendant driving rapidly away from the scene after the shooting. She told the police what she had seen.

When interviewed by police, defendant stated he heard about the shooting and that Mo had been killed, but he denied being in the area when the shooting occurred. He claimed to have been in Las Vegas but could not recall what day he went or when he came back. A search of defendants garage revealed a replica Uzi, hidden under a jacket. Defendants vehicle was found parked five or six houses down and across the street from his residence.

Defendant testified at trial that he knew Ware, or Crazy Mike, and that he had bought methamphetamine and marijuana from Ware. Defendant claimed Ware was a Crips gang member and methamphetamine addict who had pulled a knife on Garcia. He also claimed that Ware carried a gun at all times.^[2] Defendant admitted having a .38 revolver and essentially claimed he had it for self-defense, as he had been told Ware was looking for him and wanted to kill him for a $60 drug debt. On the night of the incident, defendant asserted that Ware appeared to be angry, and he believed Alva was going to carjack him. Later, he saw Wares car following his, and when he saw Ware lean toward the right passenger side, he believed Ware was going for his gun. Convinced that Ware was going to shoot him, defendant reacted and shot his own gun, without aiming, out of the passenger window. Defendant denied intending to kill Ware. He also denied membership in a gang. Defendant denied that various discs or albums seized by police at his residence were related to his gang involvement; rather, he stated these items reflected the rap music he recorded. He explained that his stage name was Baby Sniper.

In rebuttal, the prosecution presented evidence that defendant had previously shot someone over a turf battle and that he was known by the moniker Baby Sniper. Testimony was also offered that, a month prior to the shooting, defendant had threatened to kill Wedin and that defendant was dealing drugs in the City of Corona and had stated that he wanted to take over Corona. A gang expert testified that defendant had identified himself as Snyper from the West Myrtle Street gang and had stated he had been a gang member since he was 11 years old.^[3]

II

DISCUSSION

Before trial, the defense attempted to preclude the use of defendants moniker, Baby Sniper or Lil Sniper, and the use of defendants gang affiliation. The court initially ruled the gang evidence was inadmissible.^[4] During the Peoples case-in-chief, the People adhered to the courts order.

However, once the defense informed the prosecution of its intent to offer evidence of the victims violent character to support defendants defense of self-defense or imperfect self-defense, the prosecution requested reconsideration of the courts initial ruling. The People contended defendants involvement with a gang, including his use of a moniker and his prior uncharged bad acts, were admissible under Evidence Code section 1103, subdivision (b). In turn, defendant moved to exclude the evidence on the grounds it was irrelevant and prejudicial. The court held the evidence could be admitted in rebuttal, as defendant had testified the victim had propensity for violence, had a moniker, and denied gang membership. The court essentially found the gang evidence, including defendants moniker, and defendants uncharged prior acts were relevant information the jury should be allowed to consider in determining the believability of defendants assertions that he was acting in self-defense in this case and that the probative value of defendants prior acts would substantially outweigh the prejudicial effect.

Defendant contends that the trial court prejudicially erred in admitting evidence of his gang moniker, gang membership, and uncharged bad acts. Specifically, he claims the evidence was inadmissible character evidence and unduly prejudicial.

Character evidence is generally inadmissible to prove a person acted in conformity with it on a given occasion. (Evid. Code, 1101, subd. (a).) Evidence Code section 1103 sets forth exceptions to this general rule however. One exception allows a criminal defendant to offer evidence of the victims character to show the victim acted in conformity with it. [Citation.] (People v. Myers (2007) 148 Cal.App.4th 546, 552, citing Evid. Code, 1103, subd. (a)(1).) In general, a defendant in a prosecution for a homicide or an assaultive crime who has raised self-defense is authorized under Evidence Code section 1103 to present evidence of the violent character of the victim via the victims subsequent acts of violence, as well as prior acts of violence, to show the victim was the aggressor. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448.) If the defendant offers evidence showing the victim has a violent character, then the prosecution may offer evidence of the defendants violent character to show the defendant acted in conformity with it. (Evid. Code, 1103 , subd. (b).)^[5] The trial court, however, has broad discretion under Evidence Code section 352 to exclude such character 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, of confusing the issues, or of misleading the jury. (Evid. Code, 352; see also Shoemaker, at p. 448.) We review a trial courts ruling on an evidentiary question for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955.)

We discern no error here. As noted above, Evidence Code section 1103 allows the introduction of evidence of a defendants violent acts and reputation for violence, if a defendant presents evidence as to the bad acts or reputation of the victim of a crime . . . . (People v. Blanco (1992) 10 Cal.App.4th 1167, 1169.) Such was the case here. Defendant was allowed to introduce evidence of Wares violent character to support his defense that he had acted in self-defense. Accordingly, evidence of defendants character for violence was admissible under section 1103, subdivision (b). (Blanco, at pp. 1175-1176; People v. Clark (1982) 130 Cal.App.3d 371, 384, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92 [[w]here a defendant has introduced character evidence to prove a victims conduct then the prosecution may introduce such evidence to rebut the evidence introduced by the defendant].) Defendants arguments to the contrary are unavailing.

Additionally, the trial court properly balanced the probative value and prejudicial effect of the evidence. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; see also People v. Hillhouse (2002) 27 Cal.4th 469, 496.) A determination under Evidence Code section 352 will not be overturned except upon a finding the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.] (Rodrigues, at pp. 1124-1125.) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome (People v. Waidla (2000) 22 Cal.4th 690, 724) and uniquely tends to evoke an emotional bias against the defendant without regard to relevance. (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.)

Here, when the trial court made its ruling, evidence of defendants prior violence, including his membership in a violent criminal street gang, was highly probative to rebut the inference that Ware was going for his gun, and defendant was merely defending himself. Given defendants reliance on Wares prior violence to support his assertion that Ware was the aggressor, including allegations that Ware wanted to kill defendant over a drug debt and that Ware was a Crips gang member who often carried weapons, we cannot say that admission of evidence that defendant, too, had committed violence in the past and was a member of a violent criminal street gang was unduly prejudicial. It is apparent that the trial court weighed the probative value of the evidence and understood and fulfilled its responsibilities under Evidence Code section 352. (People v. Williams (1997) 16 Cal.4th 153, 213.) We find no error.

In any event, any assumed error in admitting the evidence in question here was manifestly harmless. (See People v. Blanco, supra, 10 Cal.App.4th at p. 1175 [categories of evidentiary infractions resulting in denial of due process are narrowly construed]; People v. Sergill (1982) 138 Cal.App.3d 34, 41 [error in admitting evidence reviewed under People v. Watson (1956) 46 Cal.2d 818, 836].)^[6] Here, the evidence that defendant was the aggressor and pursued Ware after encountering him in his car was more compelling than the evidence of Ware going for his gun. Multiple witnesses, including passengers in defendants car, corroborated the prosecutions account of the evidence that defendant pursued Ware after Ware drove off. When defendant caught up with Wares vehicle, a witness in Wares car noticed a red dot on his left side, believed it might have been from the laser pointer of the gun he had seen earlier coming from defendants vehicle, and ducked down. Defendant then reached across the front passenger seat and fired three or four shots from his .38-caliber revolver at the victims vehicle, killing Ware. The impact of the testimony that defendant pursued Wares vehicle after Ware drove off negated the testimony that defendant shot at Ware because he believed Ware was going for his gun, thus making defendants claim of self-defense incredible. Neither defendant nor the victim had the most savory of backgrounds. However, there was substantial corroborating evidence that defendant was the aggressor in this case. We conclude the introduction of the challenged evidence, even if erroneous, was harmless.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] Defendants testimony that Ware often carried weapons and used and sold methamphetamine was corroborated by another defense witness.

^[3] The parties stipulated that the West Myrtle Street gang was a violent criminal street gang within the meaning of the law.

^[4] The court, however, allowed evidence of defendants drug dealing, as this conduct was evidence that went directly to defendants motive to shoot Ware.

^[5] Specifically, Evidence Code section 1103 , subdivision (b) provides: In a criminal action, evidence of the defendants character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant . . . .

^[6] We reject defendants claim that the more stringent Chapman standard of prejudice applies. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Application of the ordinary rules of evidence does not deprive a defendant of constitutional rights. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)