P. v. Alejo
Filed 4/10/13 P. v. Alejo CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALEX ALEJO,
Defendant and
Appellant.
H037602
(Monterey
County
Super. Ct.
No. SS091635)
Following a
jury trial, Alex Alejo (appellant) was found guilty of two counts of
§§ 187, subd. (a), 644, counts one and two),
246, count three),
title="">[1]
shooting at an inhabited dwelling (§ 246, count four), two counts of assault
with a firearm (§ 245, subd. (b), counts five and six), and one count of
(a)). As to counts one through six, the
jury found true the allegation that appellant committed the crimes for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and as to counts
one, two, five and six, that he personally discharged a firearm within the
meaning of section 12022.53, subdivision (c).
On November 2, 2011, the court sentenced
appellant to 40 years to life in state prison, with a cumulative minimum
eligible parole date of 30 years.
Appellant filed a notice of appeal the same day.
The sole
issue on appeal is whether appellant was denied the
Evidence Adduced at Trial
On June 15, 2009, at about 3:30 p.m. Carlos and James Santoyo were
driving to their home in Castroville.
Carlos was driving his Honda Civic and James was in the front passenger
seat.
Road, they saw a truck pull in front of their car;
they recognized the driver as Pierre Santana.
When the truck turned on to Castro Street,
Carlos saw someone hanging out of the window; this person was saying something,
but Carlos could not hear what he was saying.
James testified that the passenger "popped" out of the window
of the truck to gesture at them twice; in court, both James and Carlos
identified appellant as this passenger.
Castro and Wood Street,
where Carlos intended to turn left to continue home, the truck was waiting to
turn right. Appellant put his head out
of the window of the truck again; James saw that he had a handgun. James told Carlos to duck down and Carlos
heard James say that appellant had a gun; Carlos heard gunshots and bullets
hitting his car as he drove fast onto Wood Street.
Carlos
drove to his house where his mother called the police. However, James left before the police arrived
because he was scared. Initially, Carlos
did not tell the police that James was in the car during the shooting.
Miguel
Santoyo, one of James's and Carlos's brothers, was at the family home fixing
his car at the time of the shooting. He
heard three or four gunshots; moments later he saw his brothers arrive. They appeared to be scared. Carlos and James told Miguel that they were
shot at by someone in Pierre's
truck. Approximately 10 to 15 minutes
earlier, Miguel had seen Pierre's
truck and had seen the passenger in the truck.
Miguel knew Pierre as they
had gone to school together. In court,
Miguel identified appellant as the passenger in the truck.
Carlos's
car was hit by bullets in three places, the driver's side door, the trunk and
the front passenger door. It was
stipulated that the casings found after the shooting were fired from the same
firearm used in another shooting—which occurred on December 8, 2009, at the
Santoyos' home—at a time when appellant was incarcerated on this case.
Eric,
who worked at a building at the intersection of Geil, Wood and Castro Streets,
testified that he looked out the window of his office after the shooting and
saw a champagne-colored full-size truck pull up to the stop line; he saw two
people in the truck, one of which, the passenger, he "got a look
at." Eric testified that the
passenger "looked kind of like a pirate, like Johnny Depp." This person had medium length dark hair, a
slender face and some facial hair that he thought was a "Fu
Manchu." Eric acknowledged that he
had been shown a photographic line-up about a week after the shooting and he
was not able to identify appellant.
However, approximately a month later he was able to identify appellant
in another photographic line-up. In
court, Eric was about 50 percent sure that the passenger was appellant.
It was
stipulated that on June 15, 2009, a bullet was shot through the front door of a
home located on Geil Street. The home
was located 512 feet from the intersection where the Santoyos' car had been
shot.
Deputy Erik
Schumacher, who testified as a gang expert, said that the Castroville Norteños,
a criminal street gang, had about 2500 members.
Their primary activities include committing murders, attempted murders,
violent assaults, and transportation and sale of narcotics and firearms. Deputy Schumacher described four predicate
offenses committed by Norteños; assault with a firearm committed by gang member
Juan Carlos Godoy on May 2, 2008; possession of a firearm by gang member and
felon Jose Hernandez on April 7, 2007; assault by means of force likely to
produce great bodily injury by gang member Carolyn Huerta on October 15, 2007;
and assault with a deadly weapon committed by gang member Ramon Obas on October
21, 2008. According to the deputy, based
on appellant's tattoos and jail intake information, he opined that appellant is
an active member of the gang.
name="_ftnref7" title="">[7] Deputy Schumacher testified that the shooting
in this case would benefit the Norteños by attempting to remove rival gang
members
and by instilling fear into the neighborhood.
Further, he informed the jury that guns can be collectively possessed by
a gang, although in some cases the same individual will use a gun more than
once. He had seen cases in which a particular
gun was used up to seven times by various gang members.
Discussion
Right to Present a
Defense
Appellant
contends that the trial court erroneously excluded third party culpability
evidence, thereby violating his right to present a defense under the Fourteenth
Amendment to the federal Constitution.
Background
Before
trial, defense counsel moved to admit evidence that the gun used on
June 15, 2009, was used in a second shooting on June 22, 2009, and in a
third shooting on December 8th, 2009.
Defense counsel's offer of proof related
to the June 22 shooting was that one week after the shooting in this case, a
shooting occurred in the area of Pomber and Mead Streets in Castroville.
as a Hispanic male, 5' 6" to 5' 7" tall, 170 pounds with short black
faded hair with a widow's peak; he had a goatee, a green artichoke tattoo on
his neck and tattoos on his arms.
Following the June 22 shooting, two witnesses to the incident picked
appellant from a photographic lineup as having been the shooter; a third
witness picked appellant as the person who looked most similar to the June 22
shooter. However, later, appellant was
excluded as a suspect because he is significantly taller than the suspect in
this June 22 shooting and because he did not have an artichoke tattoo;
witnesses to this incident later identified two other Norteño gang members,
both of whom had artichoke tattoos, as the possible shooter.
Ultimately,
the court allowed the defense to present evidence of the December 8 shooting,
but not the June 22 shooting. The court
found that there was no way to present the evidence related to the June 22
shooting without having a "second" trial in which appellant would
have to defend against him being the shooter in the June 22 shooting. The court found the evidence
"relevant," but overly time consuming.
Appellant
argues that the court's exclusion of the evidence related to the June 22
shooting merely because it would have been time consuming to present denied him
his right to present a defense and thereby denied him due process.
" 'As
a general matter, the "[a]pplication of the ordinary rules of evidence . .
. does not impermissibly infringe on a defendant's right to present a
defense." [Citations.]' [Citation.]"
(People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Where the trial court does not preclude the
defendant from presenting a defense but rejects some evidence concerning that
defense, the error is reversible only if it has resulted in a miscarriage of
justice. (Ibid.)
With
certain statutory exceptions, all relevant evidence is admissible. (Evid. Code, § 351.) " 'Relevant evidence' means evidence . .
. having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action." (Evid. Code, § 210.)
To be
admissible, third-party culpability evidence need not show " 'substantial
proof of a probability' that the third person committed the act; it need only
be capable of raising a reasonable doubt of defendant's guilt." (People
v. Hall (1986) 41 Cal.3d 826, 833.)
However, "there must be direct or
person to the actual perpetration of the crime." (Ibid.)
"The principles
of law are clear. . . . [T]he standard for admitting evidence of third party
culpability [is] the same as for other exculpatory evidence: the evidence [has] to be relevant under
Evidence Code section 350, and its probative value [can]not be 'substantially
outweighed by the risk of undue delay, prejudice, or confusion' under Evidence
Code section 352." (People v.
Kaurish (1990) 52 Cal.3d 648, 685.)
In the
present case, appellant submitted an offer of proof, which in essence showed
that the gun used in the June 15 incident was the same gun used in the June 22
incident. As to the identity of the
shooter in the June 22 incident, there was no definitive evidence of who that
person was other than possibly another Norteño gang member. The proffered evidence showed that originally
appellant had been identified as that person.
The only disputed fact in this case was the identity of the shooter in
the June 15 incident. However, the
proffered evidence related to the June 22 incident, without more, does not
raise a reasonable doubt about the identity of the shooter in the June 15
incident. We reject appellant's assertion that the evidence strongly suggests that
the shooter in the June 22 incident could have carried out the shooting in
the June 15 incident given the fact that the purported shooter in the June 22
incident was reported to have tattoos on his neck. Conspicuous by its absence in the description
of the shooter in the June 15 incident is any report of the shooter having
tattoos on his neck, which given the position of the vehicles during the
shooting, Carlos and James should have been able to see. Both Carlos and James testified that the
person that shot at them was wearing a hooded sweater, but the hood was down;
both Carlos and James did not notice any tattoos on that person's neck. Carlos testified that he could see the person
from the shoulders up.
Further, the fact that the
same gun was used in the two different incidents is of no moment in light of
the fact that guns can be used by different members of a gang. In the proffered evidence, we see no direct
or circumstantial evidence linking the shooter in the June 22 incident to the
actual perpetration of the crime in this case as required by
Cal.3d. at page 833.
On the
other hand, what the proffered evidence does is raise a speculative inference
that because appellant was misidentified as the shooter in the June 22
incident, appellant may have been
misidentified as the shooter in this case.
The
exclusion of weak and speculative evidence of third
party culpability does not
infringe on a defendant's constitutional
rights. (Holmes v. South Carolina
(2006) 547 U.S. 319, 326-327 (Holmes);
People
v. Gonzales (2012) 54 Cal.4th
1234, 1261.) Simply put, "the
Constitution permits judges 'to exclude evidence that is "repetitive . . .
, only marginally relevant" or
poses an undue risk of "harassment, prejudice,
confusion of the issues." ' " (Holmes,
supra,
547 U.S. at pp. 326-327, italics added.)
override the application of ordinary rules of evidence, " 'the
proffered evidence must have more than "slight-relevancy" to the
issues presented. [Citation.] . . .
[Citation.] The proffered evidence must
be of some competent, substantial and significant value. [Citations.]'
[Citations.]" (People v.
Tidwell (2008) 163 Cal.App.4th 1447, 1457.)
For the reasons outlined ante,
we do not believe that the proffered evidence in this case rose to that level.
Contrary to appellant's assertions,
the excluded evidence was not critical to his defense. Appellant was not prevented from challenging
the eyewitness identification evidence; defense counsel vigorously cross examined
both Carlos and James on what they saw regarding the shooter in the June 15
incident and in James's case the reliability of his identification of appellant
in the photographic line-up that he was shown.
The jury heard, through the court's own instruction, of the various ways
in which eyewitness identification evidence must be questioned and evaluated.
marginally relevant evidence. On this
record, appellant's argument that he was denied his right to present a defense
fails.
Although the court excluded the
evidence on the ground that it was too time consuming to present, we find that
it was only marginally relevant and thus did not abridge appellant's right to
present a defense. " ' "No
rule of decision is better or more firmly established by authority, nor one
resting upon a sounder basis of reason and propriety, than that a ruling or
decision, itself correct in law, will not be disturbed on appeal merely because
given for the wrong reason. If right
upon any theory of law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to its
conclusion." ' " (People
v. Zapien (1993) 4 Cal.4th 929, 976.)
Disposition
The
judgment is affirmed.
ELIA,
J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.
name="_ftn1" title="">[1] All unspecified section references are
to the Penal Code.
name="_ftn2" title="">[2] For ease of reading we refer to the
Santoyo brothers by their first names.
No disrespect is intended.
