P. v. Otero















Filed 1/16/13 P. v. Otero
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. CESAR OTERO, Defendant and Appellant.

B230045 (Los Angeles County Super. Ct. No. TA106872)

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

Arthur M. Lew, Judge.
Affirmed.

Barbara A. Smith,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Shawn McGahey Webb and David Zarmi, Deputy
Attorneys General, for Plaintiff and Respondent.



_________________________



Cesar
Otero appeals from the judgment entered following his convictions by jury for
attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187;
count 1) and shooting from a motor vehicle
(Pen. Code, § 12034, subd. (c); count 3) each offense with personal use of a
firearm, personal and intentional discharge of a firearm, and personal and
intentional discharge of a firearm causing great bodily injury (Pen. Code, §§
12022.53, subds. (b), (c) & (d)), and for possession of a firearm by a
felon (Pen. Code, § 12021, subd. (a)(1); count 2) with court findings he
suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior
serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for
life with the possibility of parole (with a minimum parole eligibility term of
14 years), plus 30 years.

>FACTUAL SUMMARY

1. People’s
Evidence.

Viewed
in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (>Ochoa)), the evidence established that
about 10:40 a.m.
on January
5, 2009, Theresa Martinez was at home on Anzac
near Santa Ana Boulevard
(Santa Ana)
when she heard three or four nearby gunshots.
She later looked out her window and saw a car speed away. The car looked like one depicted in a
photograph (People’s exhibit No. 2).
(All exhibits herein referenced were admitted into evidence.)

About
10:45 a.m.
on January
5, 2009, Los Angeles Police Officer Brandon
Griffith, responding to a call, went to the residence at 10930 Anzac. Diana Reyes, appellant’s common-law wife, was
present. A window at the residence had
been shot out and there were six bullet casings in the street.

On
January
5, 2009, Moses Herrera (the victim as to count 1)
lived with his mother Gabriela Baez and his sister Jokebeth in a rear house at
10600 Croesus. The address of the front
house was 10602 Croesus. Baez testified
Herrera awakened her about 7:30 a.m.
or 8:30 a.m.
and she later drove her car, containing Herrera and Jokebeth, while going on
errands. Baez’s car was depicted in the
above mentioned People’s exhibit No. 2.
Baez later drove Herrera and Jokebeth home and the car entered the
driveway. Baez indicated she returned
home perhaps before noon. She made sure Jokebeth, who was autistic,
entered the front house where Baez’s mother lived. Baez and Herrera talked about three or four
minutes, then he exited the car.

After
Herrera entered a gate, Baez “looked over the back mirror” and saw a truck that
slowed in the middle of the street. The
truck’s driver, a male, fired more than five shots from a gun he held in his
left hand. The gun appeared to be a
nine-millimeter handgun. Multiple
bullets struck Herrera. The truck, which
had no rear license plate, never stopped.


Baez
gave conflicting testimony as to whether the shooter was Hispanic. The shooter was not Black or White. Baez testified the shooter was between 20 and
30 years old and “kind of heavyset [in] weight.” He was clean shaven, had “real, real short”
hair, and was wearing a dark or black baseball cap and a dark blue, or black,
shirt. Baez’s car had a “real deep
tinted window” and her rear window had a “limo-type” tint.

Croesus
was a one-way southbound street. When
the truck, traveling southbound, was close to Croesus and 107th, Baez decided
to follow it. Baez followed the truck
southbound on Croesus to Santa
Ana. The truck then drove on nearby streets until
it drove southbound on Hickory
towards Santa Ana. The truck slowed and the shooter fired
additional shots at a house on Hickory.

The
truck then drove on nearby streets until it was travelling northbound on Grape,
a one-way street. While on Grape, the
truck collided with a parked red Cadillac.
The truck continued but Baez eventually lost sight of it. Baez identified at trial a photograph
(People’s exhibit No. 5) of a truck as depicting the truck she had seen.href="#_ftn1" name="_ftnref1" title="">[1]

Baez testified that she was on the
phone with 911 “from the minute . . . [she] started after [the shooter]” and
that she was talking to someone the entire time. The prosecutor asked Baez, “As soon as you
left Croesus?” and Baez replied, “. . . I think . . . right after I
got behind him, that would be like maybe on Croesus and 107th.” A tape of Baez’s 911 call was played to the
jury.

A
police custodian of records testified an incident report was generated whenever
someone called 911, the operator obtained “the address,” and the operator
entered the information in the computer.
An incident report reflected that at 12:29 p.m. on January 5, 2009,
an incident occurred at Hickory
and East 107th. The custodian also
testified the call came in at 12:29
p.m., and the caller was a female. The report reflected that at 12:30 p.m.,
a heavyset Hispanic male was firing a .38-caliber gun. At 12:38 p.m., the caller asked that police
meet at her residence at 10602 Croesus.

During
the afternoon of January 5, 2009, police went to the victim’s residence at
10600 Croesus. Police found six
9-millimeter bullet casings in the street in front of the residence and two
bullets in its driveway. Police found a
similar casing at the shooting scene at “10824” Hickory. Police went to Grape and saw damage on the
driver’s side mirror of the Cadillac. A
criminalist testified the above bullets and casings were fired from the same
gun.

Arturo Garcia testified that around
lunchtime on January 5, 2009, he was outside his residence at 10620
Croesus. He heard gunshots, then saw a
truck drive by at high speed. Garcia,
who had taken a college art course and knew how to draw, described the truck to
police and drew a picture (People’s exhibit No. 10) of it. Garcia could not see inside the truck and
could not see who was driving it.
However, Garcia saw that the driver was a man as the truck went by
quickly. During cross-examination, appellant’s
counsel represented that Garcia’s picture showed the driver with “maybe
spikey-like hair at the top.” Garcia
denied remembering whether the driver had that type of hair.

A Sprint Nextel
custodian of records testified cellphone calls would be made or received via a
cell tower (tower) that, in an urban area, would be no more than two miles from
the cellphone. Cellphone
records for a cellphone with the phone number (323) 867-8050 reflected
that calls were made or received on that cellphone using a tower(s) as
follows. At 9:18 a.m. on January 5,
2009, calls made used a Santa Fe Springs tower.
At 9:42 a.m., a call made began by using an Artesia tower and ended by
using a Cerritos tower. At 10:38 a.m., a
call received used a Torrance tower.
After numerous phone calls, a call made at 11:53 a.m. used a Torrance
tower and ended using a different tower.
At 12:20 p.m., a call made used a tower at East 103rd in Los
Angeles. At 12:38 p.m., a call received
used a Long Beach tower.

On
January 6, 2009, a police officer went to Superior Pools (Superior) in Santa Fe
Springs and saw a truck with a blue baseball cap on the dashboard. The officer testified the truck appeared to
be the one depicted in the photographs which were People’s exhibit Nos. 5
and 26. The truck the officer observed
had a rear license plate. A criminalist
presented evidence that paint on the truck observed by the officer matched
paint from the Cadillac, and the height of the red paint on the truck
substantially matched the height of the driver’s side mirror of the Cadillac.

Albert Delacruz testified that in
January 2009, he was the operations manager of Superior and employed appellant
as a driver. People’s exhibit
No. 26 depicted one of Superior’s delivery trucks. Drivers employed by Superior were required to
inspect their trucks and complete inspection reports for them before and after
deliveries. On January 5, 2009,
appellant completed a pre-delivery inspection report for the truck depicted in
People’s exhibit No. 26, but he did not complete a post-delivery report. The pre-delivery report reflected nothing unusual. Appellant’s delivery log for January 5, 2009,
indicated he was supposed to go to Artesia, Torrance, Lakewood, and Buena
Park. The truck assigned to appellant
would deliver and receive items in the South Bay area only.

Appellant’s
truck was equipped with a GPS system that generated documents reflecting the
truck’s location when the truck’s engine was turned on, when it was turned off,
and every 10 minutes. The GPS was
accurate to within nine feet and reported the closest address. The GPS might be off by one address.

GPS
documents for appellant’s truck reflect the following. At 11:49 a.m. on January 5, 2009, the
truck was in Torrance. At noon, the
truck was on Torrance Boulevard near a freeway onramp. At 12:09 p.m., the truck was travelling on the
110 freeway in Los Angeles. At
12:20 p.m., the truck was at 10722 Mona in Los Angeles, i.e., on Mona near
107th. At 12:25 p.m., the truck’s engine
turned off at 10814 Croesus near 107th.
Less than a minute later, at 12:25 p.m., the truck’s engine turned on at
10924 Croesus near Santa Ana. The truck
shortly thereafter, but still at 12:25 p.m., quickly accelerated to 26 miles
per hour and proceeded toward Santa Ana.
At 12:30 p.m., the truck was at 10605 Graham. At 12:40 p.m., the truck was exiting the
710 freeway in Compton.

Evidence was
presented that appellant sometimes lived with Reyes at 10930 Anzac, and
sometimes lived with his parents in the residence across the street at 10933
Anzac. On January 15, 2009, police
searched the residence at 10933 Anzac.
Fernando Quintano (Fernando) and Judy Quintano (Judy), appellant’s
brother and sister, respectively, were present at the time, and Judy apparently
lived there. Police
recovered two cellphones from that residence, and a detective believed they belonged
to Fernando and Judy, respectively. In
each cellphone there was an entry for the name Cesar and a phone number
associated with that entry. The phone
number was (323) 867-8050. Police searched
the residence at 10930 Anzac and it appeared someone had hastily left that
residence.

Los
Angeles Police Officer Carlos Lozano, a gang expert, testified Herrera was an
active member of the Watts Colonia Weigand gang (Weigand), and appellant was an
active member of the Suicidal Watts gang (Suicidal). The two gangs were rivals and each affiliated
with another gang(s). Weigand and
Suicidal were two of the primary gangs in the area encompassed by 103rd on the
north, Weigand and Mona on the east, 110th on the south, and Graham and
Willowbrook on the west. Suicidal’s
territory was the one-block area encompassed by Santa Ana on the north, Anzac
on the east, 110th on the south, and Wilmington on the west. In December 2008, Sammie Zambrano, a Weigand
member, was shot and killed in Suicidal territory, leading to ongoing
retaliatory shootings between the gangs.
Appellant had the reputation of being an intimidating enforcer in his
gang.

Lozano
also testified gang members would not provide information to police but would
personally retaliate against enemies. A
gang member showed disrespect to a rival gang by entering the latter’s
territory. A gang member showed ultimate
disrespect for a rival gang member by committing violence on the rival gang
member in the latter’s neighborhood, and retaliation would be swift and violent. Gang members committed public violence to
enhance their reputation and intimidate the neighborhood. In response to a hypothetical question based
on evidence, Lozano opined to the effect the shooting of Herrera was done for
the benefit of, at the direction of, or in association with, Suicidal.

2. Defense
Evidence.

In defense, Herrera testified the
only event he remembered on the morning of January 5, 2009, was that he was
shot. However, he also testified he
looked back before he was shot, saw the gunman, and appellant was not the
shooter. Herrera testified the shooter’s
hair looked like a fade. Herrera denied
previously testifying the shooter had long, slicked-back hair. Herrera then acknowledged he previously had
testified the shooter had slicked-back hair.
Herrera denied remembering if the shooter had facial hair. Herrera then acknowledged he previously had
testified the shooter had a goatee.
Herrera denied knowing appellant.
Herrera acknowledged, however, that he had met appellant in jail prior
to the previous trial. When police saw
Herrera had been shot, they laughed at him and said, “They finally got you
. . . .”

3. Rebuttal
Evidence.

In rebuttal, Los Angeles Police
Officer Thomas Eiman testified that on June 25, 2009, he interviewed Herrera at
a police station. Herrera had been
arrested for possession of marijuana.
Eiman was investigating Zambrano’s murder and Herrera did not want to
discuss the case. Herrera indicated he
did not know anything about the killing of Zambrano and, even if Herrera had
known something, he would not have told the information to police.

Herrera
indicated he was upset his mother had been nearby when he was shot on January
5, 2009. Herrera told Eiman, “We’re
doing what we have to do, and we’ll catch whoever we have to catch. And later on if you gotta . . . lock us up
for whatever, we’ll [sic] lock us up
for whatever, but right now I don’t know nothing, . . .” Herrera denied knowing who shot him and
suggested Herrera was walking into the house when he was shot.

>ISSUES

Appellant claims (1) there is insufficient evidence
supporting his convictions and (2) the trial court erroneously denied his
motion for a new trial.

>DISCUSSION

1. There
Was Sufficient Evidence Supporting Appellant’s Convictions.

Appellant claims there is insufficient evidence supporting his
convictions because there is insufficient identification evidence that he was
the person who committed the crimes. We
reject the claim.

There is no dispute someone
attempted to murder Herrera and committed the other offenses; the issue is
identity. There was substantial evidence
as follows. About 10:40 a.m. on
January 5, 2009, someone fired multiple shots and shot out the window of the
residence at 10930 Anzac.
Appellant, an active Suicidal member, lived at the residence, which was
in Suicidal territory. A car that looked
like Baez’s car sped from the shooting scene.
Herrera, Baez’s son who was an active Wiegand member, lived at 10600
Croesus. Less than two hours after the
first shooting, the male driver of a truck shot Herrera outside 10602 Croesus,
not far from 10930 Anzac, and a short distance from Baez’s car which was in the
driveway. Shortly thereafter, the gun
used to shoot Herrera was used to shoot at a house on Hickory. Suicidal and Wiegand were rival gangs, there
had been ongoing retaliatory shootings between them, and appellant was an
enforcer in his gang.

There is no real dispute that the truck seen in the
general neighborhood of appellant and Herrera on January 5, 2009, was the
delivery truck assigned to appellant, that he was driving it that day, and he
drove it near the scene of the Herrera shooting.href="#_ftn2" name="_ftnref2" title="">[2] Garcia provided a detailed drawing of the
truck. Baez identified at trial People’s exhibit No. 5 as a photograph depicting the truck
she had seen. A police officer testified
the truck depicted in People’s exhibit Nos. 5 and 26 appeared to be the truck
he saw on January 6, 2009, at Superior, the pool company where appellant
worked.

Delacruz, who employed appellant as a driver at Superior, testified
People’s exhibit No. 26 depicted one of Superior’s trucks, drivers were
supposed to complete pre-delivery and post-delivery inspection reports for
their trucks, and, on January 5, 2009, appellant completed a pre-delivery
report, but not a post-delivery report, for the truck depicted in People’s
exhibit No. 26. The jury reasonably
could have concluded appellant was driving the truck at all times on January 5,
2009, and that he failed to complete a post-delivery inspection report in order
to avoid reporting the damage he had caused to the truck when he was driving it
on Grape. The jury further could have
concluded appellant evidenced consciousness of guilt by removing the rear
license plate of the truck before he committed the present offenses, and
affixing it there after he committed them.

Further, based on the evidence, including the testimony of Baez, the
evidence from the GPS system, and the evidence of cellphone calls made and
received by appellant, the jury reasonably could have concluded as
follows. After learning by phone about
the shooting at 10930 Anzac, appellant drove his delivery truck on the 110
freeway and eventually drove to the general neighborhood of appellant and
Herrera. At 12:20 p.m., appellant
arrived at Mona and 107th and was also in range of the tower at 103rd. Sometime after 12:20 p.m., but before 12:25
p.m., appellant, driving the truck, shot Herrera, committing the offenses
alleged in counts 1 and 3. Before,
during, and after that five-minute period, he committed the offense alleged in
count 2.

After shooting Herrera, appellant continued southbound on Croesus,
arriving at 10814 Croesus and 10924 Croesus at 12:25 p.m. He then went to Hickory at 12:29 p.m.
and shot at a house there. He later left
the scene. There was sufficient
evidence, including identification evidence, to convince a rational trier of
fact, beyond a reasonable doubt, that appellant committed the present
offenses. (Ochoa, supra, 6 Cal.4th at p. 1206.)

2. >The Trial Court Properly Denied Appellant’s
Motion for a New Trial.

On May 4,
2010, the jury was sworn and, on May 13, 2010, the jury reached their verdicts
after two hours and 25 minutes of deliberations.href="#_ftn3" name="_ftnref3" title="">[3] On January 5, 2011, appellant filed a motion
for a new trial. At the hearing on that
date, appellant argued the motion was based on, inter alia, newly discovered
evidence, i.e., the testimony of Herbert Godoy.

Godoy testified
at the hearing as follows. Godoy had
suffered a 2010 conviction for cocaine possession and a 2001 robbery conviction. Godoy was appellant’s friend and had known
appellant since Godoy was 13 years old.
In January 2009, Godoy was staying at 10812 Croesus. Appellant, every other week, came to Godoy’s
house and helped clean Godoy’s pool.
Appellant would sometimes just show up, knowing when the pool needed
servicing. Godoy did not recall January
5, 2009, or where Godoy was, or what he was doing, on that date. Godoy moved from Croesus in March 2009. He filed with the post office a change of
address card effective in March 2009. On
January 4, 2011, an investigator first contacted Godoy about this case and
subpoenaed him.

During
cross-examination, Godoy testified as follows.
Godoy was 32 years old and grew up in Nickerson Gardens in Watts. Godoy became friends with appellant in Camp
Holton, a juvenile detention center.
Godoy lived on Croesus for about a year.
It was probably before January 2009 that Godoy last saw appellant at
Godoy’s Croesus residence. Godoy could
not remember the Croesus address without reading it to refresh his memory.

Godoy moved out
of his Croesus residence in something like “January, February, March.” It was possible Godoy moved before January
2009. It was also possible Godoy was not
home on January 5, 2009. When the
prosecutor asked if Godoy had any knowledge that on January 5, 2009, appellant
was at Godoy’s Croesus residence, Godoy replied no and that he did not
recall.

Godoy learned
appellant was in jail when Godoy looked for him after appellant’s parents told
Godoy that appellant had been arrested.
Godoy looked for appellant a little over a year before Godoy’s
testimony.

During
argument on the motion, appellant argued Godoy’s testimony was newly discovered
evidence that on January 5, 2009, appellant was in the area of the Herrera
shooting because appellant went to Godoy’s Croesus residence as a friend and to
service his pool.

The trial court
indicated the identification evidence introduced against appellant at trial was
circumstantial but extremely strong. The
court suggested Godoy’s testimony would be irrelevant and the court indicated
that, even if Godoy’s testimony would be admissible, there was no reasonable
possibility that if he had testified at trial, the jury would have reached a
more favorable result for appellant. The
trial court denied appellant’s motion for a new trial.

Appellant
claims the trial court erred by denying the motion. We disagree.
In ruling on a motion for a new trial based on newly-discovered
evidence, the trial court considers, inter alia, whether (1) the evidence is
newly-discovered, (2) the evidence is such as to render a different result
probable on a retrial, and (3) the party could not with reasonable diligence
have discovered and produced the evidence at the trial. (People
v. Delgado (1993) 5 Cal.4th 312, 328.) A trial court may consider the credibility as
well as the materiality of the evidence when determining whether introduction
of the evidence at a retrial would render a different result reasonably probable. (Id.
at p. 329.) A motion for a new
trial based on newly-discovered evidence is looked upon with disfavor. (People
v. Shoals (1992) 8 Cal.App.4th 475, 485-486.) We assume we review de novo the trial court’s
order
denying the motion for a
new trial. (Cf. People v. Ault
(2004) 33 Cal.4th 1250, 1262, fn. 7; People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.)

As to whether Godoy’s testimony was newly-discovered
evidence, Godoy testified at the January 2011 hearing that he moved from
Croesus in March 2009 after having lived there a year, and appellant, his
friend, habitually came every other week to clean his pool and sometimes just
showed up as needed. If so, appellant
would have known this and could have called Godoy as a witness at appellant’s
2010 trial to testify to evidence of appellant’s habit of service to permit an
inference appellant was at Godoy’s residence on January 5, 2009. Godoy’s testimony was not newly-discovered
evidence.

As
to whether Godoy’s testimony would have rendered a different result probable,
his testimony was the sole testimony
presented at the hearing. Godoy had been
convicted of robbery, a crime of moral turpitude probative of dishonesty. Godoy was a lifelong friend of appellant, a
fact pertinent to bias.

Godoy testified it was possible Godoy moved before
January 2009, but also indicated he may have moved in January 2009. Godoy testified it was probably before
January 2009, that he last saw appellant at Godoy’s residence, and it was
possible Godoy was not home on January 5, 2009.
Godoy denied, and did not recall, that appellant was at Godoy’s house on
January 5, 2009. Godoy had lived on
Croesus for a year but could not remember his address. Appellant concedes Godoy’s “memories were
rather vague.” Godoy did not testify he
told appellant’s parents that Godoy could provide testimony that might
exculpate appellant. There is no dispute
someone committed the present offenses.
There was strong evidence, even absent testimony from Godoy, that
appellant committed them. Godoy’s
testimony would not have rendered a different result probable on a retrial.

Finally,
appellant presumably knew prior to trial about the alleged newly-discovered
evidence of anticipated testimony from Godoy relating evidence of appellant’s
habit of service at Godoy’s residence.
However, an investigator first contacted Godoy the day before the
hearing. The record fails to demonstrate
appellant could not with reasonable diligence have discovered and produced the
alleged newly-discovered evidence at trial.
The trial court did not err by denying appellant’s motion for a new
trial.

>DISPOSITION

The
judgment is affirmed.



NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS









KITCHING,
J.



We concur:









KLEIN,
P. J.









ALDRICH, J.