P. v. Villalvazo
Filed 6/20/12 P. v. Villalvazo CA2/4
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS VILLALVAZO et al.,
Defendants and Appellants.
B232293
(Los Angeles County
Super. Ct. No. BA364542)
APPEALS from judgments of the Superior Court of
County, Leslie A. Swain, Judge. Affirmed.
Jonathan P. Milberg, under
appointment by the Court of Appeal, for Defendant and Appellant Luis
Villalvazo.
Tracey A. Rogers, under appointment
by the Court of Appeal, for Defendant and Appellant Victor Mancia.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
>
Luis
Villalvazo and Victor Mancia were tried together before a jury. The jury found Villalvazo and Mancia guilty
of two counts of willful, deliberate, and premeditated attempted murder (Pen.
Code, §§ 664, 187, subd. (a)),
name="_ftnref1" title="">[1]
shooting a firearm from a motor vehicle
(§ 12034, subd. (c)), and shooting at an
inhabited dwelling (§ 246), with findings that the offenses were committed
for the benefit of, at the direction of, or in association with a
of section 186.22, subdivision (b)(1)(C) and (4). In addition, as to counts 1, 3, and 4, the
jury found the following allegations true as to Villalvazo: (1) he personally used a firearm; (2) he
personally and intentionally discharged a firearm, proximately causing great
bodily injury; and (3) a principal personally used and intentionally discharged
a firearm, proximately causing great bodily injury. (§ 12022.53, subds. (b), (d) &
(e)(1).) As to count 2, the jury found
the same allegations true, with the exception of the infliction of great bodily
injury pursuant to section 12022.53, subdivisions (d) and (e)(1). Inexplicably, the jury determined that all of
the personal discharge allegations (§ 12022.53, subd. (c)) were not
true. As to counts 1, 3, and 4, the jury
concluded as to Mancia that a principal used and personally discharged a
weapon, proximately causing great bodily injury. As to count 2, the jury found the great
bodily injury allegation (§ 12022.53, subds. (d) & (e)(1)) not true
and the remaining two allegations (§12022.53, subds. (b), (c) & (e)(1))
true.
Both filed
timely notices of appeal. Villalvazo
filed an opening brief contending that the trial court erred in denying his
opening brief requesting this court to independently review the record pursuant
to People v. Wende (1979) 25 Cal.3d
436, 441. She also filed a declaration
stating that she had sent Mancia a letter advising him of the nature of the
brief, a copy of the brief, and the record.
On November 14, 2011,
we advised Mancia he had 30 days within which to submit any issues that he
wished us to consider. To date, we have
received no response.
We affirm
the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2009, Fausto Martinez
was sitting outside his residence on South Union Drive
in Los Angeles with his neighbors
Eder Santana and a person named Jerman.
A small gray car drove slowly towards them. Martinez
was able to see only a hand inside the car holding a weapon. He then heard four or five gunshots and was
wounded in the foot. Santana was also
injured by a bullet grazing his foot.
The vehicle kept going down Union and turned
right on 6th Street.
Los Angeles
Police Detective Thomasin Clack and her partner Detective Balderrama were
driving in the vicinity and heard three shots fired. Clack looked in the direction of the
shots. She observed a male hopping on
one foot and saw a compact car travelling southbound on Union
Drive. The
car was moving slowly in Clack’s direction and made a right turn. Clack and her partner began to follow the car
and broadcast their location via the radio, believing the vehicle was involved
in the shooting. The suspect vehicle
slowed and the passenger and driver opened their doors slightly. Clack saw two people inside. The officers continued to follow the
car. It stopped and Clack saw Villalvazo
getting out of the passenger side of the vehicle. She observed the handle of a gun protruding
from Villalvazo’s waistband. He started
to draw the weapon; however, he got back into the car and it headed eastbound
on Ocean View.
Los Angeles
Police Officer Jose Avila was patrolling when he heard the radio broadcast
concerning the suspect vehicle and immediately spotted it on Grand View. As Officer Avila approached the car, he saw
the passenger throw what appeared to be a weapon out of the passenger
window. Officer Avila stopped the car
and detained the occupants. He
identified Villalvazo as the passenger and Mancia as the driver. A loaded semi-automatic .45 caliber weapon
was later found on the sidewalk.
Officer
Jack Chavez arrived at the scene, observed the handgun on the ground, and
photographed it. He did not order that
the gun be dusted for fingerprints.
A police
department criminalist, Carol Acosta, examined the firearm recovered by police,
as well as three discharged .45 caliber casings, one fired bullet, and one
bullet core found at the scene of the shooting.
She determined that the casings and the bullet had been fired from the
firearm in evidence. During
cross-examination at trial, she reviewed her report and noted there was
fingerprint powder on the firearm and magazine, indicating that the weapon had
been dusted for fingerprints.
name="_ftnref2" title="">[2]
Miguel
Herrera, a construction worker who was working in the area, testified that the
Friday before the shooting occurred, he saw Villalvazo spray painting a word
containing the letter “R†on a wall. On
the day of the shooting, he saw a car going down Union
Drive with a passenger in the front seat. The passenger crouched down, lifted his right
hand up, reached across his body, and pointed it towards the driver’s side of
the car. Herrera heard three or four
shots and saw the vehicle turning onto 6th Street. Herrera identified Villalvazo as the driver
of the car.
Los Angeles
Police Officer Antonio Hernandez testified as a gang expert. He knew Villalvazo, who was an admitted
member of the DIA gang. DIA and the
Rockwood gang used to be allies, but since October 2009 had become rivals. Officer Hernandez had seen graffiti with
DIA’s and Rockwood’s names crossed out, which was a sign of disrespect. Martinez’s
house was in territory claimed by Rockwood and there was Rockwood graffiti in
the area. When asked a hypothetical
about a car with DIA members travelling in the area, and shooting three
individuals sitting in front of a residence, Hernandez opined that the crime
was committed for the benefit of the DIA gang.
Los Angeles
Police Officer Michael Chang testified that Mancia had admitted on two
occasions that he was a DIA gang member and had a tattoo of the letters DIA on
his abdomen.
Neither
defendant testified. The defense
recalled Officer Hernandez as a witness, who testified that Eder Santana was
often in the company of Rockwood gang members.
DISCUSSION
I. New Trial Motion
After
Acosta, the ballistics expert, testified that fingerprints may have been lifted
from the gun, the prosecutor informed the court that he had not been notified
of that fact. He immediately contacted
the police lab and discovered that a fingerprint had been lifted. Thereafter, the prosecutor was informed that
the print and one taken from the finger of Mancia were a match. He then notified defense counsel. Villalvazo’s attorney informed the court that
the prosecutor had told him early in the proceedings that there was no
fingerprint evidence. Counsel stated he
had proceeded on that assumption and his defense would have been different had
he known about the print. He moved for a
mistrial. Mancia’s attorney indicated
that if the fingerprint evidence were admitted, she would ask for a
continuance. If the continuance request
was denied, she would move for a mistrial.
The court stated that if the prosecutor agreed to go forward without the
evidence, there would be no basis to grant a motion for a mistrial. After a brief recess, the prosecutor informed
the court that his preference was to proceed with the trial and exclude the
evidence of the fingerprint match.
Villalvazo’s attorney stated that he was prepared to proceed with the
trial under those conditions, but was not waiving his right to appeal the
ruling.
After the
jury had returned its guilty verdict, Villalvazo moved for a new trial based on
the exclusion of the fingerprint evidence.
After extensive argument by the parties, the court ruled that the
fingerprint evidence was not necessarily exculpatory evidence for Villalvazo
and could not overrule the “overwhelming evidence of Mr. Villalvazo’s
guilt in this case.†The new trial
motion was denied.
Section
1181, subdivision (8) provides that the trial court may grant a defendant’s new
trial motion “[w]hen new evidence is discovered material to the defendant, and
which he could not, with reasonable diligence, have discovered and produced at
the trial.†The trial court considers whether (1) the evidence is newly
discovered, (2) the evidence is cumulative, (3) it is probable that the
evidence would render a different result upon retrial, (4) the moving party
could have discovered and produced the evidence at trial, and (5) the facts are
shown by the best admissible evidence. (
328.) When making this determination,
the trial court may consider the credibility as well as the materiality of the
new evidence. (Id. at p. 329.) We will
reverse the trial court’s ruling only if a manifest and unmistakable abuse of
discretion clearly appears. (
466.) Each case must be evaluated taking
into account its specific facts in determining whether the trial court has properly
exercised its discretion. (
The
Attorney General argues the evidence was not newly discovered because the
defense could have requested that the gun be fingerprinted prior to trial. We are not persuaded. We concur with the trial court that the
defense was entitled to rely on the prosecution’s representation that no
fingerprint evidence existed.
Villalvazo
relies heavily on People v. Soojian (2010)
190 Cal.App.4th 491, a case in which the Court of Appeal found the trial court
utilized the incorrect standard in denying the defendant’s new trial
motion. At trial, the evidence pointing
to the defendant was not overwhelming and there was other evidence suggesting
the defendant’s cousin was the perpetrator.
(Id. at pp. 497,
500-503.) In his new trial motion, the
defendant included a number of declarations that cast doubt on the accuracy of
the jury’s guilty verdict. (
defendant makes a motion for a new trial based on newly discovered evidence, he
has met his burden of establishing that a different result is probable on
retrial of the case if he has established that it is probable that at least one
juror would have voted to find him not guilty had the new evidence been
presented.†(Id. at p. 521.) After
reviewing the newly discovered evidence Soojian presented in his motion for new
trial, the panel concluded his motion should have been granted. (Id. at
p. 524.)
Villalvazo insists that if his jury
had heard that Mancia’s fingerprint was on the weapon, at least one of its
members would have found the personal discharge allegation not true. We disagree.
Initially, we note, as did the trial court, that the fingerprint
evidence was not necessarily exculpatory.
Mancia’s fingerprint on the gun does not establish that he was the only
person to touch it, and neither trial nor appellate counsel suggest
otherwise. Despite the lack of a
fingerprint linking Villalvazo to the gun, the evidence showing that he was the
shooter is compelling. First, police
officers saw the car involved in the shooting immediately after it
occurred. Detective Clack heard the
shots, saw one of the victims hopping on one foot (both victims were shot in
the foot), and observed the suspect vehicle driving in her direction. It is clear that the driver and passenger of
the vehicle did not have the opportunity to change positions. Second, Herrera said the passenger reached
across his body and pointed a gun toward the driver’s side of the car. Although it is true Herrera identified
Villalvazo as the driver, it is evident from the events following the attack
that he was mistaken. Third, as
Detective Clack and her partner followed the vehicle, she saw the car come to
a stop and Villalvazo get out of the
passenger side with a gun in his waistband.
He looked in Clack’s direction, started to draw the weapon and, instead,
got back into the vehicle. Fourth,
Officer Avila saw the passenger throw a gun out of the passenger side of the
vehicle. Fifth, when Avila
stopped the car, Mancia was in the driver’s seat and Villalvazo was in the
passenger’s seat. The evidence was
overwhelming that Villalvazo, at the very least, handled the weapon; yet, he
left no fingerprint, demonstrating why the exclusion of the print evidence was
not prejudicial.
title="">[3]
In a further effort to show a
reasonable probability of a different result, Villalvazo points to the jury’s
inconsistent findings on the firearm allegations. As we discussed, the jury found that
Villalvazo personally discharged a firearm proximately causing great bodily
injury and also concluded that he did not discharge a weapon. Contrary to Villalvazo, we do not find that
this inconsistency is evidence the jury was having difficulty reaching a
conclusion. Given that it also
determined that Villalvazo personally used a weapon, the verdicts lead to the
logical conclusion that the jury mistakenly believed that if it found
Villalvazo discharged a weapon and caused injury, it was precluded from finding
he simply discharged a weapon.
As we are convinced there is no
reasonable probability that a juror would have concluded that Villalvazo did
not personally discharge a firearm had the fingerprint evidence been admitted,
the trial court did not abuse its discretion in denying the new trial motion.
II. Mancia’s Request for Independent Review
We have
examined the entire record and are satisfied that no arguable issues exist, and
that Mancia has, by virtue of his counsel’s compliance with the
record, received adequate and effective appellate review of the judgment
entered against him in this case. (
259, 278, People v. Kelly (2006) 40
Cal.4th 106, 112-113.)
The
judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J. WILLHITE,
J.
further statutory references are to the Penal Code unless otherwise indicated.
performed on both defendants was negative.
