P. v. Mendoza

Filed 10/30/06 P. v. Mendoza CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Adrian Mendoza challenges his first degree murder and possession of a firearm convictions on the grounds the verdicts were not supported by sufficient evidence, and the trial court erred by admitting photographs of appellant’s gang tattoos and instructing the jury with CALJIC No. 2.11.5. We conclude appellant’s convictions on both counts were supported by ample evidence. The trial court did not abuse its discretion by admitting photographs of appellant’s gang tattoos, as they possessed substantial probative value and posed no risk of undue prejudice in light of the remaining evidence. The court also did not err by instructing the jury with CALJIC No. 2.11.5.

BACKGROUND AND PROCEDURAL HISTORY

As Juan Munoz was riding his bicycle down a street on March 19, 2000, a red Toyota driving in the opposite direction slowed down. The car’s driver “mad dogged” Munoz. The car made a U-turn and chased Munoz, who rode faster. The car stopped suddenly and two men in the car got out. The man who had been the passenger in the car fired a gun towards a house, and the two men ran toward the back of the house. More shots were fired in the area behind the house, where the police later found Munoz dead. The police recovered spent cartridges from guns of two different calibers. Appellant admitted his involvement in the shooting to Miguel Herrera, and Herrera’s girlfriend overheard the admission. Appellant was a member of the East Side Trece gang, while Munoz was affiliated with the rival Loco Park gang. The site of the murder was located within territory claimed by the Loco Park gang.

A jury convicted appellant of first degree murder and possession of a firearm by a felon. The jury also found true numerous enhancement allegations, including allegations that appellant committed the murder for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(2)), and that he personally and intentionally fired a gun, causing death (Pen. Code, § 12022.53, subd. (d)). The court sentenced appellant to prison for 50 years to life.

DISCUSSION

1. Ample evidence supports appellant’s convictions.

Appellant contends the evidence was insufficient to support his conviction on either count. He argues that only “uncorroborated accomplice testimony“ linked him to the murder and the evidence did not establish that he directly committed the offenses or had the requisite mental states for guilt as an aider and abettor.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

Elizabeth Jenny Francisco, who was 10 years old at the time of the charged offenses, testified she was outside her house playing when she saw a young man riding a bicycle down the street. A small red car containing two Latino men drove past in the opposite direction. The driver of the car “mad-dogged” the bicyclist. Because the driver was facing Francisco, she had a good view of his face and looked at it. The car made a U-turn and drove back down the street in the same direction the bicycle was traveling. The cyclist sped up. Francisco lost sight of them, but heard five or six shots coming from the house at the corner of the block, which was located at 1480 East 22nd Street.

On April 11, 2000, detectives showed Francisco an array of photographs. After carefully studying the photographs, she selected appellant’s photograph as the person who “looks a lot like the driver of the red car the day I saw the car pass by the guy on the bike.” Francisco could not identify anyone at the trial, which occurred more than five years later.

Joshua Maravilla, who was 11 at the time of the offense, testified he was in his front yard playing when he heard a loud engine noise. He saw a small, four-door red car stop suddenly in front of the house at 1480 East 22nd Street. Two Latino men were in the car and both of them got out. The man who had been the passenger fired a gun toward the house. The two men then ran toward the back of the house and Maravilla heard more shots, though the men were out of his sight.

Patrol officers Cesar Chavez and his partner heard a radio broadcast regarding Munoz’s shooting and a description of a car involved in it. Chavez’s partner recalled seeing a car matching the description behind 1127 East 29th Street. The officers drove there and found a red car matching the description. The car was registered to appellant. Chavez spoke to Miguel Herrera and his girlfriend, who were in the house at that address. Both Herrera and his girlfriend were taken to the police station for questioning. Police officers later took Maravilla to look at the car. He identified it as the car involved in the shooting.

Miguel Herrera lived at 1127 East 29th Street. He and appellant were members of the East Side Trece gang. Although Herrera had three gang tattoos, he testified he did not actively participate in the gang. The Loco Park gang was a rival of East Side Trece. Appellant was Herrera’s drug dealer and often visited Herrera’s house. When the police came to his house on March 19, 2000, Herrera was under the influence of crack cocaine. He did not recall what he told the police or what happened that day prior to the arrival of the police. Herrera did recall that a red car that did not belong to him was parked on his property when the police contacted him. The police interviewed him again on April 11, 2000, but he also was under the influence of marijuana that day and did not remember what he said.^[1]

A tape of Herrera’s April 11, 2000 statement was played at trial. Herrera told the police that he and his girlfriend, Nayeli Castro, were eating breakfast when appellant came to his house around noon on March 19, 2000. Appellant was nervous and said he wanted to change his shirt. Herrera thought appellant may have robbed someone. He gave appellant a white shirt to put on. Appellant told Herrera they had “put in work” with the lollipops, which was a derogatory name for the Loco Park gang. Appellant said they “caught some fool slipping in a bike,” ran up to him, and shot him several times. He said he was the driver and “Demon” was with him, and they both got out and shot at the victim. Later, as Herrera gave appellant a ride, appellant said something about “putting the smash down.”

Nayeli Castro testified she was at Herrera’s home when the police arrived. She did not know appellant and did not recall anyone coming to the house before the police. She also did not recall the statement she made to the police. A tape of Castro’s March 19, 2000 interview by detectives was played at trial. Castro told the detectives she had known appellant for about two months. Appellant arrived at Herrera’s house earlier that day and spoke to Herrera. Castro overheard appellant say, “We went and we blasted on some fools from Loco Park. They were slipping outside.” Appellant said he was the driver, and Castro heard him mention Demon. Appellant asked for a ride and they dropped him off in the same place they always did.

The police found three spent .32 caliber casings in front of the house at 1480 East 22nd Street and three spent .380 caliber casings from the backyard at that address, along with two spent bullets. Bullets also were recovered from Munoz’s body. Criminalist Diana Paul examined the spent casings and three bullets received from the coroner’s office. Two of the .32 caliber casings had been cycled through the same gun, but she was unable to determine if the recovered .32 caliber casings had been fired from the same gun. The three .380 caliber casings were all fired from the same gun. The bullets received from the coroner and one of the spent bullets recovered at the crime scene were all fired by the same gun. They were consistent with ammunition for a .380 caliber automatic gun. The other spent bullet found at the crime scene was consistent with a .32 caliber automatic gun and was not fired from the same gun as the other recovered bullets.

Appellant’s identity as one of Munoz’s assailants was established by appellant’s admissions to Herrera, which were overheard by Castro, and proved by their taped statements to the police. Nothing in record suggests Herrera and Castro were accomplices. At most, the record supports an inference that Herrera was an accessory after the fact because he gave appellant a different shirt to wear, allowed him to leave the car at his house, and drove him somewhere. Appellant argues that Herrera’s status as an accomplice was shown by his arrest as a suspect when appellant’s car was found at his house and his similarity to a description of the perpetrators. Suspicion and resemblance do not show Herrera’s participation in the offense as an accomplice. Moreover, even if Herrera were an accomplice and corroboration were required (Pen. Code, § 1111), sufficient corroboration was presented by Francisco’s identification of appellant from a photographic array and Maravilla’s identification of appellant’s car as that used by the assailants. Francisco’s statement that appellant “look[ed] a lot like the driver” may have diminished the persuasiveness of her identification, but it would still be adequate for corroborative purposes, as corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Williams (1997) 16 Cal.4th 635, 681.)

The record also was sufficient to show that appellant was a direct perpetrator of the murder. According to Maravilla, both men in the car got out of it and chased Munoz into the backyard. Appellant admitted to Herrera that he and the passenger both shot Munoz. The discovery of spent ammunition from two different guns strongly supports an inference that both men were armed and fired at Munoz. Considered with evidence showing that appellant was one of the two men, a reasonable jury could find beyond a reasonable doubt that appellant shot at Munoz and was therefore a direct perpetrator.^[2]

Alternatively, the evidence supported a finding that appellant aided and abetted the murder. A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561.) Assuming, for the sake of argument, that the passenger in the car had two guns and fired both of them at Munoz, appellant’s behavior nonetheless establishes his status as an aider and abettor. He drove the car slowly past Munoz, glared at him, made a U-turn to follow him, stopped the car, got out with the passenger, and chased Munoz in the final pursuit that led to his death. If appellant was not aware of the passenger’s murderous intent prior to the moment they both left the car, it necessarily became clear to him when the passenger fired at Munoz, as Maravilla testified. Appellant joined in the subsequent brief pursuit of Munoz to the backyard, where additional shots were fired at Munoz. Appellant’s conduct in driving and stopping the car and pursuing Munoz assisted in the commission of the murder, and the evidence supported a strong inference that he knew of and shared his companion’s murderous intent.

Appellant provides no specific argument addressing his conviction on count two, possession of a firearm by a felon. However, the evidence cited above showing that he fired one of the two guns that were used to shoot the victim would permit a reasonable jury to find, beyond a reasonable doubt, that appellant was in possession of a gun at the time of the shooting. Appellant stipulated at trial he had a prior felony conviction at the time of the shooting.

Accordingly, appellant’s convictions on both counts were supported by sufficient evidence.

2. The trial court did not err by permitting the prosecutor to introduce photographs of appellant’s tattoos.

During jury selection, the prosecutor sought to photograph appellant’s gang tattoos. Defense counsel did not object to taking the photograph, but objected to the admission of evidence of “a very large tattoo, gang tattoo, on his chest” on the ground that it was prejudicial. The court granted the request to photograph appellant, and stated it would rule upon admissibility after seeing the photograph.

When the issue was addressed again the next day, the prosecutor informed the court that appellant had many tattoos, including East Side Trece tattoos on his back and abdomen and other gang tattoos on his hands. The court deferred ruling until it saw the photographs.

Following jury selection, the prosecutor told the court she had selected seven of fourteen photographs she would seek to introduce. It appears each photograph was of a different tattoo. Defense counsel objected to admission of “the very large tattoos” on the ground “jurors might interpret the size of the tattoo as degree of involvement.” Defense counsel stated he had no “objection to the smaller ones.” The court and prosecutor described the tattoos in question as “ES 13” on appellant’s chest and stomach, back and right shoulder; a drawing containing “sureno” on appellant’s left shoulder and upper arm; “L.A.” on appellant’s left ear; a web containing “ES 13,” “L.A.,” and “213” on appellant’s left hand; and a “13” beneath appellant’s right eye. Defense counsel stated, “I think because we have other evidence of gang membership, the tattoos, other tattoos, I think sureno and L.A. is too encompassing, which it could encompass rival gangs as well. My understanding is south, I mean, generally comes into play when you are in state prison. There is norte and, I guess, sureno. So I don’t think that is relevant to the point that they are trying to prove Mr. Mendoza is a member of East Side Trece. So I would ask the court to exclude those photographs and testimony regarding those tattoos. They are not directly related to Mr. Mendoza’s gang, and 213.”

The court ruled that all of the photographs were admissible against appellant’s Evidence Code section 352 objection. The court stated,

“Based upon the proffer, the court finds that the probative value is significant as regards each and every one of the photographs.

“When one adorns one’s body with tattoos, especially to the extent of the tattoos in this case, it demonstrates what can be argued to be a certain degree of allegiance, and loyalty, and commitment to a particular group or organization. That relates directly to issues of motive and intent in this case.

“And with regard specifically to any tattoo of sureno, or 213, or Los Angeles, again that just goes to establish the degree of commitment and any motive and association.

“The court finds that the probative value of each and every one of these photographs is demonstrably high. The prejudicial value with regard to anything offered by opposing counsel is always present. But as I evaluate the photographs, I find that the prejudicial impact does not substantially outweigh probative value. I find probative value is far more compelling than prejudicial impact, and certainly prejudicial impact does not rise to the level of being substantially greater than the probative value.

“So I will recognize the objection under 352 and overrule it. However, I will sustain an objection to any mention of Mexican Mafia pursuant to Evidence Code 352.”

Detective Rich Arciniega testified regarding the meaning of appellant’s tattoos depicted in the photographs.

Appellant contends the trial court erred by admitting the photographs of his gang tattoos and the error violated due process.

Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)

Generally, we review any ruling on the admissibility of evidence for abuse of discretion. (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 201.) This standard of review applies to both a trial court’s determination of the relevance of evidence and its determination under Evidence Code section 352 of whether the evidence’s probative value is substantially outweighed by its prejudicial effect. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

As a preliminary matter, appellant objected only to the admission of photographs of his “larger” tattoos and the “213,” “sureno,” and “L.A.” tattoos. It is unclear which tattoos fell within the “larger” category, although it appears from appellant’s original objection and the court’s description that the “ES 13” on appellant’s chest and stomach was a large tattoo. Arguably, by failing to specify the particular tattoos or photographs to which he objected on the basis of size, appellant forfeited his claim. Nonetheless, given the necessity of addressing the chest/stomach tattoo and the “213,” “sureno,” and “L.A.” tattoos, and in the interest of averting a future ineffective assistance of counsel claim, we address all of the tattoos the prosecutor sought to admit.

Evidence of appellant’s gang tattoos had substantial probative value because they corroborated the testimony of Detective Arciniega and Herrera that appellant was a member of the East Side Trece gang, thereby precluding a claim that these witnesses had lied about appellant’s membership in the gang. The fact that appellant had acquired so many gang tattoos tended to show his level of commitment to the gang, which in turn strengthened the inference that the murder was committed to benefit the gang, which was relevant to both the murder charge and the gang enhancement allegation.

Against the substantial probative value of the photographs, the court properly weighed the risk of undue prejudice created by their admission. Given the testimonial evidence of appellant’s gang membership and the evidence of appellant’s apparently unprovoked, ruthless behavior in chasing down and killing Munoz, the tattoo photographs could not possibly create a risk of undue prejudice, i.e., cause the jury to prejudge appellant or his case on the basis of extraneous factors. The trial court’s decision to admit the photographs was not arbitrary, capricious or patently absurd, and did not result in a manifest miscarriage of justice.

3. The trial court did not err by instructing with CALJIC No. 2.11.5.

Without objection or request for modification, the court instructed the jury with CALJIC No. 2.11.5.^[3]

Appellant contends this instruction was error because “[t]he evidence showed that prosecution witness Miguel Herrera, not appellant, may have been involved in the fatal shooting.”

Numerous decisions have held that a trial court should modify or not give CALJIC No. 2.11.5 when a person who might have been prosecuted for the crime testifies at trial. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 560-561; People v. Hernandez (2003) 30 Cal.4th 835, 875.) The concern underlying these decisions, which addressed a prior version of the instruction, was that “the instruction might suggest to the jury that it need not consider the factors it otherwise would employ to weigh the credibility of these witnesses, such as the circumstance that the witness has been granted immunity from prosecution in return for his or her testimony.” (People v. Cornwell (2005) 37 Cal.4th 50, 88.) The older version of CALJIC No. 2.11.5 addressed by the long line of decisions cited herein and by the parties told the jury it should “not discuss or give any consideration to why the other person is not being prosecuted in this trial, whether he has been or will be prosecuted.”

The current version of CALJIC No. 2.11.5, as given at appellant’s trial, no longer tells the jury not to discuss or consider why the other person is not on trial, but only not to guess or speculate. The direction in the previous version of the instruction not to “give any consideration as to” the nonprosecution of a witness “involved” in the charged offenses could arguably be taken literally by a jury as a direction to avoid considering a benefit received by the witness in exchange for his or her testimony. The new version poses no such risk. It simply tells the jury not to speculate or guess the reasons for the nonprosecution. The new version does not suggest that the jury can or should ignore other instructions on witness credibility or avoid considering the effect of a benefit received in exchange for testimony.

Appellant’s jury also was instructed to consider all the instructions as a whole and in light of one another. (CALJIC No. 1.01.) It was further instructed that in determining the believability of a witness, jurors could “consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness,” including “[t]he existence or nonexistence of a bias, interest, or other motive.” (CALJIC No. 2.20.) It also was instructed that accomplice testimony requires corroboration and advised to view accomplice testimony with caution. Although there was no evidence that Herrera was an accomplice, the court specifically instructed the jury to determine whether he was. Given the revised text of the instruction and the “full panoply of witness credibility and accomplice instructions” given at appellant’s trial, the trial court did not err by giving the instruction. (People v. Lawley (2002) 27 Cal.4th 102, 162-163.)

Alternatively, any error was harmless. Defense counsel argued at length that Herrera was not credible, in that he was attempting to shift the blame from himself to appellant. Counsel specifically noted that Herrera testified under a grant of immunity. Given the “full panoply of witness credibility and accomplice instructions,” a reasonable jury would have concluded that, although it could not speculate or guess about the reasons Herrera was not prosecuted, it was required to consider Herrera’s bias and motive to falsify his testimony. There is no reasonable likelihood appellant would have obtained a more favorable result had the trial court omitted or modified the instruction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] Herrera testified under a grant of use immunity.

^[2] The jury’s firearm enhancement allegation findings that appellant personally fired a weapon reveals that the jury believed appellant was a direct perpetrator.

^[3] As given at appellant’s trial, CALJIC No. 2.11.5 provided as follows: “There has been evidence in this case indicating that a person other than the defendant was or may have been involved in a crime for which the defendant is on trial. There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendant on trial.”