P.
v. Sanchez
Filed
10/15/13 P. v. Sanchez
CA2/24
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
GARY
ANTHONY SANCHEZ, JR.,
Defendant and Appellant.
B241795
(Los
Angeles County
Super. Ct. No. GA079277)
APPEAL from a
judgment of the Superior Court of Los
Angeles County, Dorothy L. Shubin, Judge.
Affirmed.
Charlotte E.
Costan, 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, Susan Sullivan Pithey and Shawn McGahey Webb, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
Gary Anthony Sanchez,
Jr., appeals from a judgment following his convictions for first degree murder
and two assaults with a semiautomatic firearm.
He contends the trial court erred (1) when it denied his
previously owned a .380-caliber handgun.
He also contends that he did not receive a fair trial because of the
cumulative effect of the trial court’s errors.
Finally, he contends the evidence was insufficient to sustain two of his
convictions. Finding no reversible
error, we affirm.
In an amended
information, appellant and four codefendants
(Pen. Code, § 187, subd. (a); count 1),
attempted murder of Cassie Yeats (§§ 664/187, subd. (a); count 2), and the
assault of Yeats with a semiautomatic firearm (§ 245, subd. (b); count 7). The
that during the commission of counts 1 and 2, a principal to the offense,
specifically appellant, personally used and intentionally discharged a firearm
causing great bodily injury
or death to the victims
(§ 12022.53, subds. (b), (c), (d) & (e)(1)). As to count 7, it was alleged that appellant
personally used a firearm (§ 12022.5), and that he and three of his
codefendants personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) In addition, appellant was charged with the
assault of Ashley Booth with a semiautomatic firearm (§ 245, subd. (b); count
3), and the attempted willful, deliberate and premeditated murders of Michael
R., Joseph F. and Jason M. (§§ 664/187, subd. (a); counts 4, 5, & 6). Finally, it was alleged that all seven
offenses were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
After appellant pled not guilty and
denied all the allegations, the trial court granted the prosecution’s motion to
dismiss count 2. During voir dire, the
trial court denied several Wheeler
motions. The court also granted in part
and denied in part appellant’s motion to suppress his pretrial statement, which
he contended was obtained in violation of his Miranda rights.
The jury found appellant guilty of
first degree murder (count 1) and assault with a semiautomatic firearm (counts
3 and 7), and determined that the special allegations attached to those counts
were true. The jury found appellant not
guilty of counts 4, 5 and 6.
name="_ftnref5" title="">[5]
The trial court sentenced appellant
to state prison for 59 years and 4 months to life, with a 15-year parole
eligibility minimum. Appellant timely
filed a notice of appeal from the judgment.
FACTUAL BACKGROUND
Fred
Zamora and Arturo Ayon were next-door neighbors in Monrovia.
Late in the afternoon of December 15, 2009, Zamora hosted a party to celebrate Ayon’s
birthday. Initially, the group consisted
of Ayon and his girlfriend, Megan McIntire, and Zamora and his roommate, Myrna, and her
10-year-old son. Early that evening, a
large number of people arrived in a van.
The group included appellant and his codefendants. McIntire had met appellant several days
before and had seen him several times.
An hour later, Ashley Booth and Desiree Delgado, McIntire’s
acquaintances, also showed up. They
parked in the driveway behind the van, and McIntire took them inside Zamora’s house.
About 15 minutes later, McIntire
exited Zamora’s house and headed to Ayon’s to get a jacket. She saw a group of men that included
appellant standing between the two houses.
Some members of the group, including appellant, Jason, Mikey and Garcia,
walked to a nearby street intersection.
Gomez followed, but stopped halfway down the street and came back toward
the house. McIntire thought the men were
leaving. She went into Ayon’s house, got
her jacket, and went back outside.
A few minutes after McIntire left to
get her jacket, Booth went outside to have a cigarette. She saw appellant and his codefendants
outside. Delgado followed Booth outside,
and the women talked to Gomez. The other
men walked to a nearby area to smoke marijuana.
Meanwhile, Jason Gentile and his
girlfriend, Cassie Yeats, were walking home from a nearby gym. When Gentile and Yeats reached the
intersection near Zamora’s house, a group of men quickly approached them. Yeats noticed that one of the men, whom she
later identified as appellant, had a gun.
She stopped moving, and both she and Gentile backed away from the
men. While Gentile and the gunman spoke to
one another, the other men spread out in a half circle around them. Appellant claimed membership in a Monrovia gang, and asked Gentile where he was
from. Gentile responded that he was from
Anaheim.
Another person said something like, “Pop his ass,†“Just bust him,†or
“Just hit him.†In response, someone
said, “I don’t play with fists. I play
with guns.†Seconds later, appellant
pointed the gun at Gentile. Someone
said, “Finish it off. Get it done.†Appellant fired. Gentile grabbed his chest, looked back at
Yeats, and then fell to the ground.
Appellant fired about five more shots at Gentile. One of the bullets struck Yeats in the
foot. Appellant and the rest of the
group ran back toward Zamora’s house. Yeats
called 911 from her mobile phone.
McIntire observed the incident and
identified appellant as the shooter.
Although it was dark outside, a nearby streetlight provided
illumination. McIntire had a clear view
and was 100 percent certain that appellant was the shooter.
Booth and Delgado heard the gunshots
but did not see the shooting. They took
Booth’s son and ran to Myrna’s bedroom to hide, but Myrna yelled at them to
leave. They went outside to their car, but
Booth could not find the car keys.
Appellant and his codefendants ran up the driveway to their van. Booth dumped the contents of her purse onto
the grass to find the car keys. Someone
started yelling at her, “Move your fucking car, bitch.†The same person repeatedly yelled, “Bitch,
move your car.†Another person told her
to “Hurry up and find your keys.†Booth
was on her knees on the grass, desperately trying to find the car keys. Booth looked up and saw appellant, who was
five to six feet away, pointing a gun at her.
Booth finally found her keys and moved her car into the street. Appellant, Jason and Mikey left in the
van. Gomez went inside the house, and
Garcia started walking away from the house.
Gentile died at the scene. He suffered multiple gunshot wounds. Underneath his right arm, a coroner’s
investigator recovered a live unfired .380-caliber round. A firearms examiner analyzed the seven
casings, two expended bullets and live unfired round recovered from the
shooting. He determined that they had
been fired from the same .380-caliber semiautomatic weapon. Further, the live unfired round had been
cycled through the same weapon; it likely misfired and was manually ejected by
the shooter.
Robert Martindale, a sergeant with
the Los Angeles County Sheriff’s Department, was assigned to investigate the
shooting. Evidence found near Zamora’s driveway -- women’s cosmetics and
a piece of paper -- led him to Booth.
When he interviewed Booth, she told him what she knew of the incident
and suggested that he talk to McIntire.
Sergeant Martindale subsequently interviewed McIntire. Although McIntire was initially deceptive,
she eventually acknowledged that she saw appellant commit the shooting.
After interviewing McIntire, Sergeant
Martindale returned to the scene of the shooting. He determined that it was 175 feet from where
Gentile’s body was found to where McIntire had been standing. Sergeant Martindale also determined that
McIntire’s vision would not have been obstructed.
When Sergeant Martindale interviewed
Yeats, she told him that the assailants were all Hispanic males around the same
height. The shooter had a medium build
and was 5’7†to 5’8†tall. Yeats could
not identify appellant or any of the codefendants from photographs shown to
her. At the preliminary hearing, Yeats
stated that she believed that appellant was present at the shooting, but she
could not remember whether he was the shooter.
At trial, she testified that she believed appellant was the
shooter. Yeats explained that over the
last few days, she had “done nothing but remember†the shooting, and she
recalled appellant as the shooter.
Sergeant Martindale and his partner,
Sergeant MacArthur, interviewed appellant after his arrest. During the interview, Sergeant MacArthur told
appellant, “We know that you were there with five guys. You surrounded this white boy and his
girlfriend on the sidewalk. And you
pulled out a fuckin’ .380 and you lit him up like a Christmas tree.†Appellant denied being involved. After appellant admitted he had purchased a
.380-caliber weapon in 2005, the sergeant stated that it was “going to look
bad†because appellant liked .380-caliber firearms.
Monrovia Police Officer Yolanda
Gutierrez testified as the prosecution’s gang expert. She knew appellant, and opined that he was an
active member of Monrovia Nuevo Varrio (MNV), a criminal street gang. She stated that Jason Vargas was a documented
member of MNV. Officer Gutierrez also
opined that Gomez was a member of MNV, because he associated with MNV gang
members and had several MNV tattoos.
When presented with a hypothetical based on the facts of this case,
Officer Gutierrez opined that the shooting and assaults were committed for the
benefit of MNV. The shooting and assault
benefited MNV by instilling fear in the community. Fear enhanced the gang’s reputation and
enabled it to commit future crimes without interference.
Appellant sought to create reasonable
doubt about Yeats’s identification of him as the shooter. Vivian Fang, a close family friend, estimated
that on December 15, 2009, appellant was over six feet tall
and weighed more than 300 pounds.
DISCUSSION
Appellant
contends the judgment of conviction should be reversed because: (1) he was
denied his right to a jury drawn from a representative cross-section of the
community, as the trial court erred in denying two Wheeler motions; (2) he was denied his right to remain silent
during custodial interrogation, as the court erred in determining that he
impliedly waived his Miranda rights;
(3) the court erred in admitting evidence that he previously owned a .380-caliber
handgun, as that evidence was inadmissible character evidence; and (4) the
cumulative effect of the trial court’s errors deprived him his right to a fair
trial. Appellant also contends that the
evidence was insufficient to support two of his convictions.
A.
Appellant contends the trial court
erred in denying two Wheeler motions,
because, he argues, the prosecutor improperly used peremptory challenges to
excuse five Hispanic prospective jurors:
Nos. 5166, 3463, 6279, 9803, and 3040.
The record fails to support appellant’s argument.
1. Relevant Background
During jury
selection, the prosecutor used her second peremptory challenge against
prospective Juror No. 5166, a school counselor whose husband had some law
enforcement training. Her third
peremptory was against prospective Juror No. 3463, a woman who worked as a
courtroom assistant. One of prospective
Juror No. 3463’s children was a clerk at the same courthouse, her husband was a
retired deputy sheriff, and two of her children were peace officers.
After the defense exercised its third
peremptory challenge, the prosecutor accepted the panel. Three Hispanics were on the panel. The defense used its fourth peremptory, and
the prosecutor then excused prospective Juror No. 6279, a male college
student. At that point, the defense made
a Wheeler motion, asserting that the
last three prospective jurors dismissed by the prosecutor all appeared to be
Hispanic.
The court
found a prima facie case had been made and asked the prosecutor to state her
reasons for excusing the prospective jurors.
With respect to Juror No. 5166, the school counselor, the prosecutor
explained, “I usually don’t like to keep counselors, especially school
counselors, on the jury. They’re usually
overly sympathetic towards defendants.â€
In excusing prospective Juror No. 3463, the courtroom assistant, the
prosecutor referred to her answers in voir dire and stated, “She’s too much on
the inside . . . being a courtroom assistant. Usually, I don’t like people in the legal
profession, especially people who work inside the courtroom.†Finally, the prosecutor explained that she
excused prospective Juror No. 6279, the student, because she did not think he
would be a good juror if he was worried about missing class. She thought she was doing him a favor by
using a peremptory to release him.
Defense counsel accepted the
prosecutor’s reason for excusing prospective Juror No. 5166, the school
counselor. However, they asserted that
prospective Juror No. 3463’s connection to law enforcement made her an
acceptable prosecution juror, and that prospective Juror No. 6279 seemed eager
to serve on a jury.
name="_ftnref6" title="">[6]
The trial court denied the
motion. It found that the defense had
conceded the legitimacy of the prosecutor’s explanation for excusing Juror No.
5166. As to prospective Juror No. 3463,
the court stated that the prosecutor had articulated reasons that pertained to
the juror’s occupation and her particular responses to questions. Finally, as to prospective Juror No. 6279,
the court found it understandable that the prosecutor did not want someone on
the jury whose mind would be on other things.
The court viewed the juror as willing to serve, but not eager.
The parties continued to exercise
their peremptory challenges. After the
defense’s seventh peremptory challenge, the prosecutor accepted the panel. There were still Hispanics on the panel. The defense continued to use their peremptory
challenges, and the prosecutor excused two prospective jurors. After defense counsel used their 10th
peremptory, the prosecutor used her ninth to excuse prospective Juror No.
3040. This prospective juror admitted
that he was not a good listener and that he had “been known to forget quite a
couple of things here and there.â€
Serving on the jury, he said, would be “a challenge.†In addition, he had a grandfather who had
been arrested for assaulting a police officer, and an uncle serving time for
murder in Mexico.
The prosecutor used her 10th
peremptory to excuse prospective Juror No. 9803. This prospective juror had a brother and
uncles who had been arrested, and his girlfriend had pled guilty to witness
tampering. Further, while growing up, he
had been harassed by police officers in gang units.
The defense
made another Wheeler motion based on
the prosecutor’s dismissal of prospective Juror Nos. 3040 and 9803. The court indicated that a prima facie
showing had been made. The prosecutor
objected, pointing out that she had twice accepted the panel with Hispanic
members. She then explained that she
excused prospective Juror No. 9803 because his brother and uncles had been
arrested, his girlfriend had been arrested for witness intimidation, and he had
been harassed by gang officers. She did
not “want a juror who has been harassed in the past by officers in the gang
unit.†As for prospective Juror No.
3040, the prosecutor noted that the juror had indicated he would have a
difficult time following the witnesses’ testimony. Further, he seemed very young, and lacked the
maturity to be a juror. Defense counsel
did not argue. The court denied the
credible and her reasons race neutral.
2. Analysis
“The purpose of peremptory challenges
is to allow a party to exclude prospective jurors who[m] the party believes may
be consciously or unconsciously biased against him or her. [Citation.]
However, the use of peremptory challenges to remove prospective jurors
from the panel solely on the basis of group bias violates the right of the
defendant to a jury drawn from a representative cross-section of the
community. [Citations.]†(People
v. Jackson (1992) 10 Cal.App.4th 13, 17-18, italics & fn.
omitted.) “[A] peremptory challenge may
be predicated on a broad spectrum of evidence suggestive of juror partiality[,] . . . rang[ing]
from the obviously serious to the apparently trivial, from the virtually
certain to the highly speculative.†(
Trial courts engage in a three-step
process to resolve claims that a prosecutor used peremptory challenges to
strike prospective jurors on the basis of group bias -- that is, bias against
“‘members of an identifiable group distinguished on racial, religious, ethnic,
or similar grounds.’†(
facie case ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’
[Citation.] Second, once the
defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes.
[Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’
[Citation.]†(
ruling on the question of purposeful racial discrimination for substantial
evidence, presumes that the prosecutor used peremptory challenges in a
constitutional manner, and gives deference to the trial court’s conclusions, as
long as the “court makes ‘a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered.’â€
(People v. Avila,
quoting People v. Burgener (2003)
29 Cal.4th 833, 864.)
After examining the record, we
conclude that the trial court made “a sincere and reasoned effort†to evaluate
the prosecutor’s proffered reasons for excusing the five Hispanic prospective
jurors. Here, “[t]he prosecutor’s stated
reasons for exercising each peremptory challenge [were] neither contradicted by
the record nor inherently implausible.â€
(People v. Ward (2005) 36
Cal.4th 186, 205.) As to prospective
Juror No. 5166, the school counselor, defense counsel agreed that the reason
was legitimate and on appeal, appellant does not argue otherwise.
As to prospective Juror No. 6279, the
student, the prosecutor’s stated reason -- her concern that he would worry
about missing school -- was race neutral.
(See People v. Reynoso (2003)
31 Cal.4th 903, 925-926 (Reynoso)
[excusal of distracted prospective juror is race-neutral].) Similarly, the prosecutor’s proffered reason
to excuse prospective Juror No. 3463 --
that she was a courtroom assistant -- was race neutral. (See, e.g., People v. Mai (2013) 57 Cal.4th 986, 1052-1053 [prosecutor could
excuse prospective juror who was a 911 operator for police department because
of her demeanor and voir dire response]; People
v. Clark (2011) 52 Cal.4th 856, 1013
[prosecutor could excuse prospective juror, a legal professional, because other
jurors may ascribe to her special legal expertise].)
As to prospective Juror No. 9803, the
prosecutor explained that she excused him because he had been harassed by
police when he was younger, had family members who had been arrested, and had a
girlfriend who had pled guilty to witness tampering. These were race-neutral grounds to exclude
the prospective juror. (See, e.g.,
1681, 1690 [“[U]se of peremptory challenges to exclude prospective jurors whose
relative and/or family members have had negative experiences with the criminal
justice system is not unconstitutional.â€].)
As to prospective Juror No. 3040, the
prosecutor stated she excused him because he admitted he was not a good
listener, seemed very young, and in the prosecutor’s opinion, lacked
maturity. These were race-neutral
reasons. (See, e.g.,
429-430 [prosecutor could exclude prospective juror who was “a youthful college
student with insufficient maturity,†and another prospective juror who was
“very young and appeared immatureâ€].) In
addition, the record shows that the prospective juror had an uncle serving time
for murder. (See, e.g.,
1039, 1052-1053 [prosecutor properly challenged juror whose uncle had been
convicted of murder].)
The trial court found the
prosecutor’s proffered reasons to be race-neutral and credible. Nothing suggests that the proffered reasons
were pretextual. The prosecutor
repeatedly accepted panels with multiple Hispanic jurors, and offered rational,
credible explanations for the exercise of her peremptory challenges. (Reynoso,
supra, 31 Cal.4th at p. 926 [fact
that prosecutor accepted a jury with two Hispanic members suggests that
prosecutor did not have an unconstitutional discriminatory intent against
Hispanics].) In short, we discern no
error in the trial court’s denial of appellant’s Wheeler motions.
B. Implied
Waiver of Miranda Rights
Appellant
next contends the trial court erred in denying his motion to suppress the
entirety of a nine-minute tape-recording of a police interview. He contends all of his statements in the
interview were obtained in violation of Miranda. As explained below, we disagree.
1. Relevant Background
During
their investigation into the shootings, Sergeants Martindale and MacArthur interviewed
appellant. In the interview, which was
played for the court, appellant was advised of his Miranda rights as follows:
“MacArthur: All righty.
Well, obviously you’re in jail so -- so we got to read you your
rights.
“[Appellant]: Yeah.
“MacArthur: We got a card.
. . . .
“Martindale: I’ll do that and then we can -- we can
discuss what’s going on. And --
“MacArthur: We’ll -- We’ll tell you --
“Martindale: -- we’ll explain it and then we can talk back
and forth. Okay. “[Appellant]:
Okay.
“Martindale: All right.
Um, first of all, not to be, ah, rude or anything but you understand
English?
“[Appellant]: Yeah.
“Martindale: Okay.
I ask that because some people do and then they have difficulty, you
understand?
“[Appellant]: Yeah.
“Martindale: Okay.
Um, you have the right to remain silent.
“[Appellant]: Uh-huh.
“Martindale: And anything you say may be used against you
in court. You have the right to an
attorney during questioning. If you
cannot afford an attorney, one will be appointed for you before any
questioning. Okay?
“[Appellant]: Uh-uh.
“Martindale: All right.
Any questions, anything?
“[Appellant]: I just --
“Martindale: Okay.
“[Appellant]: -- don’t know what it’s about.
“Martindale: Okay.
Okay.â€
Sergeant Martindale then explained that appellant had been
identified as being involved in a murder in Monrovia.
After some further discussion, appellant said, “I’d just rather speak to
an attorney.†The interview continued
for a few minutes and then terminated.
At the suppression hearing, Sergeant
Martindale admitted never asking appellant whether he understood his rights or
whether he wished to waive his right to counsel before discussing the
murder. Because Sergeant Martindale
failed to do so, appellant argued he never expressly waived his
when read his rights -- “uh-huh†-- did not constitute an implied waiver. Finally, he asserted that even if he
initially waived his rights, he subsequently invoked them by stating he would
rather speak to an attorney.
The trial court determined that the
totality of circumstances established that appellant understood and impliedly
waived his Miranda rights, as he
started talking and answering questions immediately after the advisement of
rights. However, the court agreed that
appellant had invoked his right to counsel by stating he would rather speak to
an attorney. Accordingly, the court
excluded all statements made after that point.
2. Analysis
In reviewing a trial
court’s ruling on a motion to suppress, an appellate court applies two
different standards of review. The
reviewing court defers to the trial court’s findings of fact, both express and
implied, if supported by substantial evidence.
The reviewing court then independently applies the pertinent legal
principles to those facts to determine whether the motion should have been
granted. (People v. Carter (2005) 36 Cal.4th 1114, 1140.)
Under Miranda, statements obtained during custodial interrogation may be
used at trial only if the defendant has been given certain advisements. (Miranda,
supra, 384 U.S. at p. 444.) Once a suspect receives the advisements, he
“is free to exercise his own volition in deciding whether or not to make a
statement to the authorities.†(
308.) A waiver of the right to remain
silent may be express or implied from the totality of circumstances, including
the suspect’s actions and words. (
560 U.S. 370 [130 S.Ct. 2250, 2261-2264] (Berghuis);
244-250.)
Here, Miranda advisements were given, and the totality of the
circumstances shows that appellant understood his rights. Appellant stated that he understood English,
and he responded affirmatively to the various advisements. Moreover, nothing suggests that appellant was
coerced into making his statements. The
entire interview lasted less than 10 minutes, and the officers used no
“physical or psychological pressure to elicit statements from [him].†(People
v. Whitson, supra, 17 Cal.4th at
p. 249.) Rather, as noted by the trial
court, appellant promptly started speaking after being advised of his
was understood by the accused, an accused’s uncoerced statement establishes an
implied waiver of the right to remain silent.â€
(Berghuis,
determined that appellant had impliedly waived his right to remain silent until
he subsequently invoked his right to counsel.
C. Evidence of
Prior Gun Ownership
Appellant next contends the trial
court erred in admitting evidence of his prior ownership of a handgun that was
not used in the shooting. We disagree.
1. Relevant Background
During the
tape-recorded police interview, the following exchange regarding appellant’s
prior ownership of a .380-caliber handgun occurred:
“MacArthur: And -- And everybody says it’s you. You bought a .380 in 2005, right?
“(Crosstalk)
“[Appellant]: ___________
“MacArthur: Brand new.
“[Appellant]: Yeah.
“MacArthur: In El Monte, somebody supposedly took it
away.
“[Appellant]: Yeah.
“MacArthur: All right.
Um, where’s that gun now, do you know?
“[Appellant]: In El Monte ______________
“MacArthur: Okay.
So you like .380s, so that’s going to look bad.
“[Appellant]: Oh --
“MacArthur: All right.
“[Appellant]: -- you guys are trying to pin this shit on
me.
“MacArthur: No, we’re not trying to pin it on -- we have
pinned it on you.
At the suppression hearing, appellant
argued that the foregoing was irrelevant and more prejudicial than probative
under Evidence Code section 352, as the handgun was not in his possession at
the time of the shooting. He also
contended the evidence was “a specific instance of conduct which is
inadmissible†under Evidence Code section 1101.
The trial court found the evidence that appellant previously owned a
.380 relevant and probative, as there had been “a lot of testimony†that the
murder weapon was a .380, and his prior purchase tended to show his preference
for that particular caliber of handgun.
The court disagreed that the evidence was inadmissible under Evidence
Code section 1101, and suggested that counsel formulate a stipulation to
clarify that the weapon appellant owned was not the murder weapon.
The recording of appellant’s
statements was later played for the jury.
Sergeant Martindale testified that the .380 handgun appellant
acknowledged having previously owned was in the custody of the El Monte Police
Department at the time of the shooting.
2. Analysis
Appellant
contends that the evidence of his prior gun ownership was irrelevant and unduly
prejudicial under Evidence Code section 352, and that it was inadmissible
character evidence under Evidence Code section 1101. We disagree.
First, the
evidence was more probative than prejudicial, as it showed that appellant had a
preference for the same type of handgun that was used to commit the charged
offenses. The evidence was not unduly
prejudicial, as the jury was informed that appellant’s previously owned handgun
was not the weapon used to commit the charged offenses. Indeed, the jury knew appellant did not have
possession of the handgun at the time of the shooting.
Second, the evidence was not
inadmissible character evidence under Evidence Code section 1101, subdivision
(a). Prior gun ownership does not prove
that the gun owner has a propensity to commit assault or murder. Nor was the evidence inadmissible under
Evidence Code section 1101, subdivision (b), which prohibits evidence of prior
misconduct to show disposition. The
evidence admitted was that appellant previously bought a .380 handgun that had
been taken away by someone in El Monte, and later placed with the El Monte
Police Department. No evidence was
admitted suggesting that appellant illegally possessed the handgun or was
guilty of some other misconduct related to his prior gun ownership. Accordingly, the evidence of appellant’s
prior gun ownership falls outside the purview of Evidence Code section
1101. In short, the trial court did not
err in denying appellant’s motion to suppress evidence that he previously owned
a .380 handgun.
Moreover, even had the trial court
erred, we would find any error harmless under People v. Watson (1956) 46 Cal.2d 818. Although all of the charged offenses were
alleged to have been committed with a .380-caliber handgun, the jury acquitted
appellant of three counts. As to his
three convictions, McIntire and Yeats identified appellant as the person who
shot and killed Gentile. Yeats also
testified that she was injured by appellant’s shots. Booth identified him as the person who, seconds
after Gentile’s murder, pointed a gun at her and called her “bitch.†On this record, it was not reasonably
probable that a result more favorable to defendant would have been reached,
absent the admission of evidence that appellant previously owned a .380-caliber
handgun. (Id. at p. 837.)
D. Cumulative Error
Appellant contends that cumulative
error requires the reversal of his convictions.
As we have determined there were no errors, there is no cumulative
error. (People v. Jones (2013) 57 Cal.4th 899, 981.)
E. Sufficiency of
the Evidence
Appellant concedes there was sufficient
evidence to sustain his conviction for assaulting Booth. He contends, however, that the evidence was
insufficient to support his convictions for the first degree murder of Gentile
and the assault of Yeats. According to
appellant, his identification as the shooter by Yeats and McIntire was not
credible or reliable.
“In
determining whether the evidence is sufficient to support a
conviction . . . , ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’
[Citations.] Under this standard,
‘an appellate court in a criminal case . . . does not ask
itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.’
[Citation.] Rather, the reviewing
court ‘must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence -- that is, evidence
which is reasonable, credible, and of solid value -- such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]â€
(People v. Vy (2004) 122
Cal.App.4th 1209, 1224, italics omitted.)
“In deciding the sufficiency of the evidence, a reviewing court resolves
neither credibility issues nor evidentiary conflicts. [Citation.]
Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact.
[Citation.] Moreover, unless the
testimony is physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction. [Citation.]â€
(People v. Young (2005) 34
Cal.4th 1149, 1181.)
Here,
McIntire, who knew appellant, was 100 percent certain that he was the
shooter. Appellant argues that McIntire
was mistaken because of the darkness and her distance from the crime
scene. The evidence suggests the
contrary. First, a nearby streetlight
illuminated the crime scene. Second,
Sergeant Martindale determined that it was 175 feet from McIntire’s position to
the crime scene, and that the view was unobstructed. Thus, McIntire’s identification was neither
“physically impossible [n]or inherently improbable.†As such, the jury was entitled to rely on
it. (People
v. Young, supra, 34 Cal.4th at p.
1181.)
Yeats also identified appellant as
the shooter. Appellant contends that
Yeats’s identification was unreliable.
He notes that Yeats previously stated that the shooter was 5’7†to 5’8â€
tall and had a medium build, whereas a defense witness testified appellant was
over six feet tall and weighed over 300 pounds at the time of the
shooting. Yeats never selected
appellant’s picture out of a photographic array, and identified him as the
shooter only at trial. Even if Yeats’s
identification was questionable, however, the credibility of her testimony and
the weight of the identification were for the jury to decide. (See
People v. Lindsay (1964) 227 Cal.App.2d 482, 494-497 [inconsistencies
between victims’ descriptions of assailant and defendant’s actual appearance at
trial and fact that one victim identified defendant at trial but could not do
so at lineup went to weight of evidence, which is left to the jury to determine
in the first instance]; cf. People v.
Marquez (2000) 78 Cal.App.4th 1302, 1306-1307 [evidence sufficient to
support defendant’s robbery conviction despite physical differences between
himself and three witnesses’ description of the robber].) Moreover, the jury was entitled to conclude
that the person who shot Gentile and Yeats was the same person who, literally
seconds later, pointed a gun at Booth.
Appellant does not dispute that he was that person. In short, appellant’s convictions were
supported by substantial evidence.
The judgment is affirmed.
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS.
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
