P. v. Molina

Filed 12/22/09 P. v. Molina CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mark C. Kim, Judge. Affirmed.

Diana M. Teran, 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, Senior Assistant Attorney General, Stephen E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

Salvador Molina appeals from the judgment imposed after a jury convicted him of first degree murder (Pen. Code, 187),^[1]and possession of a firearm by a felon ( 12021, subd. (a)(1)), and found that in the commission of the murder he discharged a firearm and proximately caused death (12022.53, subd. (d)), and that he committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1).

Sentenced to a term of 50 years to life, appellant contends that (1) he was denied due process by the trial courts exclusion of the victims prior felony assault conviction, and (2) the courts failure to define abiding conviction in the reasonable doubt instruction was constitutional error. We affirm.

FACTS

Appellant, a member of the Westside Wilmas gang (WW), was convicted of the September 18, 2006 murder of Samuel Saucedo Martinez, a member of the rival Eastside Wilmas gang (EW). When the shooting occurred, appellant was in the company of another WW member, his friend Hector Zamora. Originally charged along with appellant, Zamora pled guilty to voluntary manslaughter during the trial and proceeded to testify for the prosecution.

According to Zamora, for two days immediately before the shooting, he and appellant had been smoking marijuana and using crystal meth together. On September 18, they drove in appellants red Honda to Lakme Avenue and L Street in Wilmington,which islocated in EW territory. Zamora testified that shootings occurred between the two gangs and he didnt often go to that territory. When appellant and Zamora reached Lakme, they parked and got out, and appellant displayed a gun he had in his pocket. At that point Zamora expected that there would be an incident.^[2] He later admitted that he and appellant had gone there intending to shoot some EW members. Zamora had wanted to go fight them; shooting them had been appellants idea.

As appellant stood near the drivers door with Zamora on the sidewalk, a black Camaro drove up. Its driver the victim, Martinez asked what they were doing there, and they replied that they were just chilling, which was not true. Martinez asked, You guys want to throw it down, or what? Martinez then started to get out of the car. Zamora thought Martinez was reaching for something under his seat. At that point appellant, who had approached the Camaro to speak with Martinez, backed up and fired three shots at him.^[3] Martinez died as a result of multiple gunshot wounds.

Appellant and Zamora returned to appellants home, where appellant flushed the shell casings down the toilet. Zamora testified that at the time of the shooting, he was not aware that a truce existed between EW and WW. A few days after the shooting, appellant showed him a newspaper article about it and stated, Well, look what we did. Do you see this here?

On cross-examination, Zamora testified that the first thing Martinez had said was Where are you from, words that could presage a fight or shooting. He saw Martinezs gang tattoos and realized he was an EW member. Zamora thought he was going to be shot. Gonzales went over to the Camaro, where another motorist was attending to Martinez. Gonzales did not see a gun there.

At a later point in time, Gonzales ended up in jail on a felony domestic violence charge. While he was in custody, he identified appellant as the shooter from a six-pack photo display. At trial, however, he denied having seen the shooter. Los Angeles Police Detective Isidro Rodriguez then testified he had interviewed Gonzales in April 2007, and shown him the six-pack. Gonzales recounted what he had seen and said he had a good view of the shooter as he drove away. After saying he didnt want to be a rat, Gonzales identified appellant from the six-pack. On the day of the preliminary hearing, Gonzales repeated his account and the identification to Rodriguez, but said he was afraid and did not wish to testify.

In a recorded discussion with another inmate at county jail, appellant admitted shooting the victim, after he reached under his seat.

In defense, appellant did not call any witnesses, but claimed he had acted in self-defense, actual or imperfect. The trial court instructed the jury on both theories.

DISCUSSION

1. Exclusion of the Victims Assault Conviction.

In support of his self-defense claim, appellant filed a motion to allow evidence of Martinezs character to prove conduct in conformity with it. (Evid. Code, 1103, subd. (a)(1).) The court heard the motion at several junctures before and during trial. After one day of trial, the court ruled that there was sufficient evidence to warrant self-defense instructions and therefore admit evidence of Martinezs character, because it tended to show that he had been the aggressor. In this connection, the court advised the defense, from Martinezs rap sheet, that he had been convicted in 1994 of assault with force likely to cause great bodily injury ( 245, subd. (a)(1)).

At the close of the evidence, appellant sought to introduce the conviction. The prosecutor argued that the conviction itself, as opposed to evidence of the victims underlying conduct, was inadmissible to show violent character. Moreover, she urged, under Evidence Code section 352 the conviction was too old to be admitted. On that score, the court cited People v. Gonzalez (1967) 66 Cal.2d 482 (Gonzalez), which had excluded a seven-year-old conviction for misdemeanor assault. After further argument, the court excluded Martinezs conviction under Evidence Code section 352, finding it to be isolated and not demonstrative of violent character at the time of Martinezs shooting.

Appellant contends that this ruling was error and infringed on his due process right to assert a defense. We do not agree. He first argues that Martinezs 1994 conviction constituted evidence of specific instances of conduct to prove character, admissible under Evidence Code section 1103, subdivision (a). But the trial court did not exclude the conviction as inadmissible under that section. Rather, the court found, under Evidence Code section 352, that the convictions probative value on the issue of self-defense was substantially outweighed by the probability that its admission would either engender undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Ibid.) That exercise of statutory discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Martinezs 1994 conviction of felonious assault carried little probative value. It did not reveal anything in particular about Martinezs conduct that led to his conviction. Indeed, Martinez could have been an aider-abetter of someone elses assaultive act. Moreover, the 12-year gap in time between his conviction and the events leading to his death further attenuated the convictions logical tendency to prove Martinezs character on the day he was shot.

Gonzales, supra, 66 Cal.2d 482, which the trial court cited in support of its ruling, exemplifies this. In Gonzalez, one appellant stabbed two other men in a knife fight in 1965. One of the men died, and the other survived. The trial court excluded self-defense evidence that in 1958, the survivor had been convicted of misdemeanor assault and had a reputation for violence. The Supreme Court rejected the claim of erroneous exclusion, because evidence relating to[the survivors] reputation seven years before the acts in question was too remote to have present probative value of his present character. (Id. at p. 500, original italics.)

Even more remote was Martinezs 12-year-old conviction. At best possessed it marginal probative value. The trial court did admit contemporaneous evidence supporting appellants self-defense claim, such as appellants and Zamoras perceptions that Martinez had been reaching for a weapon. The court did not abuse its discretion by excluding the conviction, presentation of which carried the prospect of confusing the issues. (Cf. People v. Jones (2003) 30 Cal.4th 1084, 1108-1109.)

Even if excluding the conviction was erroneous, we conclude that the error was harmless.  Appellant went to a rival gangs area, armed and looking for a fight.  Martinez provided a prime target.  Martinezs 12 year-old conviction had only remote probative value with respect to the question of self defense.  Appellant had much more powerful evidence of self-defense, to wit:  1) he and Martinez exchanged challenging words, and 2) Martinez was reaching for a gun when appellant shot him.  Nevertheless, the jury rejected appellants self-defense claim.  It is simply not reasonably probable that they would have rendered a more lenient verdict had they learned that 12 years earlier, Martinez had been convicted of felonious assault.  (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)^[4]

2. Reasonable Doubt Instruction.

Appellant contends that the definition of reasonable doubt in the standard jury instruction setting forth the prosecutions burden of proof (CALCRIM No. 220) should have been modified to add that Abiding conviction means convincing you to a near certainty of the truth of the charge.^[5] Absent that explanation, appellant asserts, the instruction unconstitutionally diminishes the burden of proof beyond a reasonable doubt.

We know of no case disapproving CALCRIM No. 220. It comports with Peoplev. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9, and the trial judge acted properly in refusing to amend it in the manner appellant requested. Like the trial judge, we decline to engage in a perilous modification of this instruction. (Id. at p. 504.) And it is not our function at this level even to entertain appellants assertion that People v. Freeman, supra, was incorrectly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOHR., J.^*

We concur:

RUBIN, Acting P. J.

FLIER, J.

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^[1] Undesignated section references are to the Penal Code.

^[2] Zamora later told police that appellant had said they should go to the area to catch . . . some East Siders.

^[3] When interrogated by a detective after his arrest, Zamora did not say anything about the victims appearing to reach below the seat.

^[4] Appellant is incorrect in claiming that the Chapman v. California(1967) 386 U.S. 18 standard of harmless error governs here. Error in excluding an item of evidence offered by the defendant is reviewable under the Watson test. (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)

^[5] Appellant requested the added instructional language, in writing, early in the proceedings, thus avoiding respondents claim of forfeiture.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.