Filed 7/28/26 P. v. Ruiz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084909
v. (Super.Ct.No. FVI18003056)
NICOLAS RUIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Zahara T.
Arredondo, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Robin Urbanski and Anastasia
Sagorsky, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant was convicted by a jury of assault on a peace officer with a
semiautomatic firearm. (Pen. Code, § 245, subd. (2).)1 Defendant appeals, arguing only
that his conviction must be reversed because the trial court abused its discretion when it
admitted evidence that defendant bore tattoos depicting or referring to firearms. We find
no prejudicial error and affirm the judgment.
II. BACKGROUND
A. Facts and Charges
In October 2018, San Bernardino County Sheriff’s deputies were conducting a
traffic stop on Bellflower Street in the City of Adelanto when they heard the sound of
gunshots from a nearby apartment complex (the apartments). Deputies went to
investigate the source of the gunfire. After knocking and announcing themselves at one
of the apartment units, a gunshot came through the window next to the apartment door
and hit one of the deputies.
As a result of this incident, defendant was charged with premeditated attempted
murder (count 1; §§ 664, 187, subd. (a)(1)); assault on a peace officer with a
semiautomatic firearm (count 2; § 245, subd. (d)(2)); grossly negligent discharge of a
firearm (count 3; § 246.3, subd. (a)); and prohibited possession of a firearm by a felon
(count 4; § 29800, subd. (a)(1)). The information also alleged that defendant personally
used a firearm, personally and intentionally discharged a firearm, and caused great bodily
1 Unlabeled statutory citations refer to the Penal Code.
2
injury in discharging a firearm in the commission of count 1 and count 2 (§ 12022.53,
subds. (b)-(d)). Finally, the information alleged eight aggravating factors in the
commission of the offenses pursuant to section 1170, subdivision (b)(2).
B. Pretrial Motions and Proceedings
Count 3 was dismissed on the People’s motion, and defendant pled guilty to count
4 (felon in possession of a firearm) prior to trial.
During pretrial motions in limine, the prosecutor sought permission to admit
several photographs of defendant. As relevant to this appeal, one photograph (exh. 8)
depicted defendant facing the camera wearing a sleeveless shirt that exposed numerous
tattoos on defendant’s arms. Two other photographs (exhs. 9, 11) depicted an enlarged
view of defendant’s right shoulder, which bore a tattoo reading: “Pistolero hasta
Muerte.” A fourth photograph (exh. 15) depicted an enlarged view of defendant’s left
shoulder, which bore a tattoo depicting a mariachi band member holding two revolvers.
Defense counsel objected to the admission of each of these photographs on the ground
that the evidence should be excluded under Evidence Code section 352 as more
prejudicial than probative. And the trial court overruled this objection as to these
photographs.
3
B. Relevant Evidence at Trial2
1. Testimony of Sheriff’s Deputies
Multiple deputies working with the San Bernardino County Sheriff’s Department
testified at trial regarding the incident. On the night of the incident, four deputies were
working together to conduct a traffic stop approximately half a mile from the apartments
when the deputies heard multiple gunshots. The deputies were dressed in full uniform
and were traveling in vehicles marked “Sheriff” and equipped with red and blue signal
lights.
Upon hearing the gunshots, the deputies decided to investigate the source of the
gunfire. One deputy parked his patrol vehicle on the street approximately 15-20 feet
away from the apartments, while two other deputies conducted an area check around the
perimeter of the apartment complex.
The two deputies conducting the area check did not observe anything of
significance and decided to continue patrolling the area. While doing so, they conducted
a second traffic stop on Bellflower Street “right across the street” from the apartments.
The overhead red and blue flashing lights, as well as all of the other lights, on their patrol
vehicle were activated. This traffic stop occurred approximately 75-100 feet from the
apartment unit where defendant was eventually located. As the deputies approached the
2 Because defendant was convicted only of assault on a peace officer with a
semiautomatic firearm (count 2; § 245, subd. (d)(2)) and challenges only the admission of
evidence related to his tattoos as error, we summarize only the evidence relevant to
consideration of this claim.
4
vehicle they had stopped, gunshots were fired in their direction from the vicinity of the
apartment building. The deputies immediately asked the stopped driver to leave and took
cover behind other vehicles parked on the street.
The two deputies on patrol waited approximately 25 minutes for the other two
deputies in the area to return as backup. All four deputies then proceeded to enter the
apartments. Within the apartment complex, the front door to each apartment unit opened
up to a shared interior courtyard. The courtyard was dimly lit at the time.
The deputies initially approached the apartment unit next door to the unit where
they eventually encountered defendant. One of the deputies knocked loudly on the door
of the apartment unit with his flashlight, verbally announced he was from the sheriff’s
department, and directed the occupants to open the door. The knock and announce
procedure was captured on video by a deputy’s body-worn camera and played for the
jury. After contacting the occupants of the first apartment unit, deputies determined that
they were not the source of the gunfire and proceeded to the next apartment unit.
As deputies approached the second apartment unit, a law enforcement helicopter
arrived and could be heard circling overhead. Deputies performed the same knock and
announce procedure at the second apartment unit. Before deputies had a chance to knock
a second time, a gunshot came from the window beside the apartment door, hitting one of
the deputies. The knock and announce procedure, as well as the gunshot, was captured
on video by a deputy’s body-worn camera and played for the jury.
The injured deputy exited the apartment complex while the remaining deputies
retreated and began yelling commands for the occupants of the apartment unit to come
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out. Four individuals eventually exited the apartment unit: defendant, a second male
occupant, a female occupant, and a young child.
2. Testimony of Female Occupant
J.M. testified that, at the time of the incident, she was in a romantic relationship
with defendant. At the time of the incident, she lived in the apartments with her young
son and defendant, and one of defendant’s friends had recently come to visit. J.M.
testified that, on the evening of the incident, defendant appeared “panicky,” looking out
the window, checking his phone, and saying that someone was trying to find him.
J.M. was unaware that defendant had a firearm until she heard him discharge the
firearm the evening of the incident. She reacted by telling defendant to stop. Defendant
prevented her from leaving the apartment, so she took her son into a closet and called
911. However, she did not specifically tell dispatch that there was a man in her
apartment with a gun out of fear of defendant’s reaction. Instead, she generally reported
there had been gunshots fired at the apartments, as well as suspicious activity in a vehicle
outside the apartment complex, in the hope that law enforcement would arrive at the
scene. While inside the closet with her son, she continued to hear many additional
gunshots and eventually heard a police helicopter overhead.
During J.M.’s testimony, the prosecutor displayed exhibit 8. J.M. was asked only
to confirm that exhibit 8 accurately depicted defendant. The prosecutor also displayed
exhibit 11 and asked J.M. to translate the tattoo depicted in the photograph. J.M.
expressed the belief that “Pistolero hasta la muerte” should be translated as “gunman till
death.”
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3. Testimony of Neighbor
J.J. testified that he was living in the apartment unit first visited by the deputies on
the night of the incident. On the night of the incident, he heard gunshots that sounded
very close, looked out the window of his apartment unit, and observed law enforcement
officers conducting a traffic stop outside on the street. He could clearly see the sheriff’s
deputies and patrol vehicles with flashing lights from his window. He recognized the
vehicles as law enforcement vehicles by their appearance and flashing lights. He also
recorded a video from his apartment window depicting the traffic stop, which was played
for the jury.
Less than 40 minutes after hearing the gunshots, deputies knocked on the door to
his apartment unit. He could recognize they were law enforcement officers “by their
outfits, what they were wearing.” After speaking with the deputies, he heard a single shot
fired from the apartment unit next door. He was “certain” the gunshot came from the
apartment unit next to his unit because there were no other apartments in the complex in
the direction from where the shots came. As he observed officers making their way
toward the apartment next door, he was still able to see their uniforms.
4. Defendant’s Interview with Law Enforcement
A sheriff’s sergeant assigned to investigate homicides testified that defendant
waived his Miranda3 rights and agreed to be interviewed by a sheriff’s deputy after the
incident. Defendant did not appear confused and was cooperative and alert.
3 Miranda v. Arizona (1966) 384 U.S. 436.
7
While speaking with this sergeant, defendant volunteered that he had shot the
deputy who was injured during the incident. Defendant expressed the belief that he was
being targeted by the “Mexican Mafia,” explained that he purchased a firearm to protect
himself, and further explained that he was visiting his girlfriend at the time of the incident
in an effort to hide from his pursuers.
During this interview, defendant admitted that, on the night of the incident, he:
(1) discharged his firearm multiple times; (2) observed sheriff’s deputies in the area on at
least two occasions prior to the incident; (3) specifically saw deputies conduct a traffic
stop outside the apartments; (4) fired shots at the deputies conducting the traffic stop
from the window of his apartment; (5) knew J.M. had called 911 prior to deputies
arriving at the apartment; (6) heard what he believed to be law enforcement officers
speaking over their radios outside the apartment; (7) heard what he believed to be a law
enforcement helicopter circling above the apartment; and (8) knew that law enforcement
personnel had entered the apartment complex.
While speaking with the sergeant, defendant also made contradictory statements
regarding his intentions the night of the incident. Initially, defendant stated that he saw
law enforcement personnel among a mob of other people and discharged his firearm to
get their attention to help him. Defendant later made statements suggesting he believed
that sheriff’s deputies were cooperating with the Mexican Mafia. And still later,
defendant denied knowing that law enforcement officers were outside his apartment
when he discharged his firearm. At the time of the interview, defendant denied ingesting
methamphetamine but admitted to consuming alcohol.
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5. Defendant’s Testimony at Trial
Defendant testified in his own defense at the time of trial. Defendant admitted he:
(1) had prior felony convictions for “possession of a controlled substance, firearm, and
suspended driver’s license”; (2) was on probation at the time of the incident and faced
three years in prison if found in violation of his probation; (3) had owned guns in the past
and enjoyed shooting as a pastime; and (4) had previously helped a friend sell
methamphetamine in exchange for a free share of the drugs.
Defendant testified that at the time of the incident, he was afraid that the “Mexican
Mafia” was looking for him. He had purchased a firearm approximately one week before
the incident. Contrary to the statements made during his interview with a sheriff’s
sergeant, defendant admitted that on the date of the incident he had ingested four or five
lines of methamphetamine.
According to defendant, he observed a suspicious vehicle parked outside the
apartments on the night of the incident. As a result, he instructed his girlfriend to call the
police, told her not to leave the apartment, and instructed her to go hide in a closet. He
used his gun to shoot out the window to “scare the Mexican Mafia away.” Later,
defendant observed law enforcement conducting a traffic stop outside the apartments on
Bellflower Street. However, he also believed he saw “Mexican Mafia” people “coming
towards” his apartment window, so he used his gun to shoot out the window to “get them
scared so they can leave.” Defendant admitted that, after he fired his gun, he observed
the law enforcement officers end their traffic stop and “let the car go,” but the the officers
“disappeared” after that.
9
Approximately 30 minutes later, defendant heard a helicopter overhead.
Defendant admitted that upon hearing the helicopter, he formed the belief that law
enforcement had arrived in the area. He saw a shadow outside the apartment window,
believed it was an individual from the Mexican Mafia, and fired a single shot out the
front window of the apartment. However, defendant claimed he did not intend to shoot at
any individual but was instead trying to get the attention of the helicopter. He denied his
prior statements that he had seen individuals with flashlights and heard voices talking
over a radio from the courtyard. Defendant also denied any knowledge that law
enforcement personnel were inside the apartment complex, denied any intent to shoot at a
deputy, and claimed he was unable to perceive things accurately because he was under
the influence of methamphetamine.
With respect to his tattoos, defendant was asked about a specific tattoo depicted in
exhibit 9, which read “Sucio by KOG,” and explained that it was in reference to “a
clothing brand trend.” Defendant was also asked about the tattoo depicted in exhibit 11,
which read, “Pistolero hasta la Muerte,” and indicated that it meant “gunman until death.”
Finally, defendant was asked about a tattoo depicted in exhibit 15 and explained it was a
“charro” or “mariachi type” holding two revolvers, which he agreed to have placed
because it “looks cool.” Defendant explained that all his tattoos were given to him by a
friend who wanted to practice tattooing in preparation for starting a new business.
C. Verdict and Sentence
The jury failed to reach a verdict on the premeditated attempted murder charge
(count 1; §§ 664, 187, subd. (a)(1)), and the trial court declared a mistrial on that count.
10
However, the jury found defendant guilty of assault on a peace officer with a
semiautomatic firearm (count 2; § 245, subd. (d)(2)) and also found true the special
allegations that defendant used a firearm, personally and intentionally discharged a
firearm, and proximately caused great bodily injury in the commission of count 2
(§ 12022.53, subds. (b)-(d)). The trial court also found true seven of the circumstances in
aggravation alleged in the information.
The trial court sentenced defendant to the aggravated determinate term of nine
years in state prison for the assault (count 2; § 245, subd. (d)(2)), enhanced by a
consecutive indeterminate term of 25 years to life for the personal discharge of a firearm
causing great bodily injury (§ 12022.53, subd. (d)).4 The trial court also sentenced
defendant to a consecutive determinate term of eight months for the prohibited possession
of a firearm (count 4; § 29800, subd. (a)(1)), representing one-third the middle term.
Defendant appeals.
III. DISCUSSION
On appeal, defendant raises a single claim that the trial court erred by admitting
photographs depicting his tattoos as evidence. As we explain, we find no prejudicial
error and affirm the judgment.
A. General Legal Principles and Standard of Review
Generally, an assault is “ ‘an unlawful attempt, coupled with a present ability, to
4 The remaining firearm enhancements were stayed pursuant to section 12022.53,
subdivision (f).
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commit a violent injury on the person of another.’ ” (People v. Morgan (2026)
19 Cal.5th 132, 138-139 (Morgan); § 240.) “Assault does not require a showing of
specific intent. [Citation.] Instead, assault requires only that the act itself was
intentional, and that the would-be assaulter was aware that his or her conduct would
probably and directly result in violent injury.” (Morgan, at p. 139.) An aggravated form
of assault occurs when a person commits an assault “with a semiautomatic firearm and
who knows or reasonably should know that the victim is a peace officer … engaged in
the performance of his or her duties, when the peace officer … is engaged in the
performance of his or her duties.” (§ 245, subd. (d)(2).)
“Under the Evidence Code, all relevant evidence is admissible unless prohibited
by statute. [Citation.] ‘ “Relevant evidence is defined in Evidence Code section 210 as
evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’ The test of relevance is whether the
evidence tends ‘logically, naturally, and by reasonable inference’ to establish material
facts such as identity, intent, or motive.” ’ [Citation.] But under Evidence Code section
352, the trial court retains the discretion to exclude relevant evidence if ‘its probative
value is substantially outweighed by the probability that its admission will’ either
‘necessitate undue consumption of time’ or ‘create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.’ ‘We review a trial court’s decision to
admit or exclude evidence ‘for abuse of discretion, and [the ruling] will not be disturbed
unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd
manner resulting in a miscarriage of justice.’ [Citation.] When evidence is erroneously
12
admitted, we do not reverse a conviction unless it is reasonably probable that a result
more favorable to the defendant would have occurred absent the error.’ ” (People v.
Young (2019) 7 Cal.5th 905, 930-931.)
B. Application
Here, defendant asserts the trial court erred by admitting evidence of his tattoos in
violation of Evidence Code sections 1101 and 352. We need not address these claims of
error in detail because we conclude that even assuming defendant preserved his objection
for appellate review5 and, even assuming the trial court should have excluded the
evidence, defendant has failed to show prejudice warranting reversal.
In this case, defendant admitted that: he knew J.M. had called 911 to summon law
enforcement to the area; he fired his gun at sheriff’s deputies conducting a traffic stop on
the street outside the apartment; he observed the sheriff’s deputies react to the gunfire; he
heard a law enforcement helicopter circle overhead within 30 minutes; and he fired his
gun upon seeing a shadow outside the window of the apartment shortly thereafter. A
neighbor testified that sheriff’s deputies were easily identifiable by their uniforms while
5 Our review of the record shows that defendant objected to the admission of
evidence of his tattoos based only on Evidence Code section 352. During the colloquy
and argument on this issue, there was no mention of Evidence Code section 1101, and the
argument centered only on whether the evidence was relevant to a contested issue in the
case. Generally, an objection that evidence is irrelevant and unduly prejudicial under
Evidence Code section 352 is insufficient to preserve for appeal a claim that evidence
was inadmissible as improper propensity evidence under Evidence Code section 1101.
(People v. Valdez (2012) 55 Cal.4th 82, 130; People v. Doolin (2009) 45 Cal.4th 390,
437.)
13
in the courtyard of the apartment complex, and defendant previously admitted he knew
law enforcement officers had entered the apartment complex, had seen law enforcement
officers in the courtyard (albeit as part of a “mob”), had observed persons with
flashlights, and had heard voices over a radio outside the apartment prior to shooting.
Finally, the jury heard testimony and reviewed video evidence that depicted sheriff’s
deputies performing a knock and announce procedure immediately before defendant fired
his gun.
Admission of evidence regarding tattoos, even if erroneous, is harmless where
substantial other evidence that would establish the same fact is properly admitted.
(People v. Medina (1995) 11 Cal.4th 694, 749-750.) And, in our view, the evidence
described above was overwhelming evidence in support of every element necessary to
convict defendant of a violation of section 245, subdivision (d)(2).
On appeal, defendant concedes that the evidence in support of his conviction was
essentially undisputed at trial. Nevertheless, defendant contends that the tattoo evidence
was prejudicial because “[t]he only real issue in this case was whether [defendant]
knowingly fired at a deputy,” and his credibility was of “crucial importance” to that issue.
We are unpersuaded by this argument.
First, there was already significant evidence undercutting defendant’s credibility
as a witness on the issue of whether he knowingly fired at a deputy. The jury was
presented with defendant’s prior contradictory interview statements in which defendant
admitted knowing that law enforcement personnel were in the apartment complex;
admitted seeing flashlights, and admitted hearing what he thought were law enforcement
14
personnel speaking over the radios outside his apartment. Defendant further admitted in
his own testimony at trial that he had committed multiple prior felonies and had
previously been involved in a scheme to sell illicit drugs. Finally, defendant openly
claimed to be under the influence of methamphetamine at the time of the incident. Given
the significant evidence suggesting defendant would not be a credible witness, defendant
has not shown that admission of evidence related to his tattoos made any significant
impact on the jury’s determination of whether defendant was a credible witness.
Second, and more importantly, defendant’s credibility as a witness was not central
to his conviction on count 2. Generally, “assault does not require a specific intent to
injure the victim.” (People v. Williams (2001) 26 Cal.4th 779, 788.) Instead, “ ‘the test
for assault is whether a reasonable person, viewing the facts known to [the defendant],
would find that the act in question would directly, naturally, and probably result in
physical force being applied to another.’ ” (People v. Cruz-Partida (2022)
79 Cal.App5th 197, 207.) Similarly, the knowledge element of section 245, subdivision
(d), requires a showing that the defendant “knows or reasonably should know that the
victim is a peace officer.” (§ 245, subd. (d)(2), italics added.) “The term ‘reasonably
should have known’… implicates an objective criminal negligence standard.” (People v.
Sifuentes (2022) 83 Cal.App.5th 217, 230.) As such, section 245, subdivision (d), does
not require a subjective intent to direct the assault at a peace officer (see People v. Perez
(2010) 50 Cal.4th 222, 233-234) and does not require actual knowledge that the victim is
a peace officer (People v. Whalen (1973) 33 Cal.App.3d 710, 717; People v. Finney
(1980) 110 Cal.App.3d 705, 713-714). A conviction requires only evidence of “such
15
circumstances that a reasonable person would know that the victim is a police officer
engaged in the performance of his duties.” (People v. Gaines (1966) 247 Cal.App.2d
141, 145 [interpreting identical language in former version of statute].)6
Thus, unlike the charge of premeditated attempted murder alleged in count 1, the
question of whether defendant had actual knowledge that the victim was a peace officer
or whether defendant subjectively intended to shoot at a peace officer were not crucial to
his conviction on count 2. Even if the jury was to find defendant completely credible
regarding his subjective intent, the jury would still be required to convict defendant on
count 2 if the evidence established that a reasonable person under the circumstances
should have known that the victim was a peace officer performing his duties. The fact
defendant did not or was unable to appreciate what a reasonable person would have
appreciated under the same circumstances does not negate any element of the offense.7
A reasonable person would expect sheriff’s deputies to respond after being shot at
while conducting a traffic stop on a public street; would expect that sheriff’s deputies
6 This interpretation is consistent with the same language used in other statutes.
(See People v. Midell (2025) 113 Cal.App.5th 1060, [Battery against a custodial officer
under section 243.1 requires only constructive knowledge of victim’s status as a custodial
officer based upon objective standard.]; People v. Sifuentes, supra, 83 Cal.App.5th at
p. 230 [interpreting similar language in section 189, subdivision (f)].)
7 Generally, “[w]hen an ‘objective standard’ applies, an individual’s failure or
inability to act reasonably, due to deficient ‘reasoning ability’ or a mental illness, is
irrelevant and inadmissible.” (People v. Mackreth (2020) 58 Cal.App.5th 317, 336.)
This principle has been specifically applied in situations involving assaults in which the
aggravating factor is the victim’s identity as a peace officer. (People v. Parks (1971)
4 Cal.3d 955, 960; Whalen, supra, 33 Cal.App.3d at p. 717.)
16
would seek to question the occupants of the building where those shots emanated; would
understand a search was still in process when hearing a police helicopter circling
overhead; and would expect deputies to eventually come to the apartment door under the
circumstances. Defendant’s credibility as a witness had no bearing on these facts because
defendant did not dispute, and instead admitted, each of these underlying facts in his
testimony at trial. On this record, defendant has not established that a jury would have
reached a different conclusion had evidence of defendant’s tattoos been excluded.
Given the overwhelming and undisputed evidence in the record and the fact that
defendant’s credibility had little bearing on the specific conviction for violation of section
245, subdivision (d)(2), defendant has not shown a reasonable probability of a more
favorable outcome had the challenged evidence of his tattoos been excluded. And absent
prejudice, reversal is not warranted.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
MENETREZ
J.
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