P. v. Negrete

Filed 8/23/06 P. v. Negrete CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Tara K. Allen, 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, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Juan Negrete (Negrete) appeals the judgment following his conviction for possession of a firearm by a felon and possession of a controlled substance. He contends that he was prejudiced when the trial court ruled that the prosecution could cross-examine a defense witness, Carlos Hernandez (Hernandez), with respect to his gang affiliation with Negrete to show that Hernandez's testimony was biased. Due to that ruling, Negrete did not call Hernandez to the stand. On appeal, Negrete posits that the gang affiliation evidence would have been more prejudicial than probative and should have been excluded under Evidence Code section 352. He argues that he was deprived of his constitutional right to present a defense.

We affirm.

FACTS

Background

On the night of October 1, 2004, Sergeant Christopher Hubner of the City of Bell Gardens Police Department saw a person spray painting graffiti on a wall and three others who appeared to be look outs. Sergeant Hubner called two detectives to notify them of illegal activity and gave them a description of the spray painter. The spray painter was later identified as Negrete.

Upon arrival, the detectives saw Negrete and two other suspects five feet away from Negrete. When Detective Mark C. Cobian approached Negrete, he fled and Detective Cobian followed. While Negrete was at the mouth of a driveway, near a dumpster, his hands went forward. Detective Cobian heard a clanging sound that, based on his experience, he believed was a handgun hitting concrete. As the chase continued toward the end of the driveway, Detective Cobian heard what sounded like a spray paint can skipping off of the ground. At the time, Negrete was the only person in Detective Cobian's line of sight.

Detective Cobian detained Negrete at the end of the driveway and recovered a can of black spray paint. The paint was the same color as the paint on the wall that had been defaced.

When Officer Rene Ruiz arrived at the scene, he was told to search the dumpster area for a possible weapon. He found a revolver. Subsequently, Officer Ruiz searched Negrete and found a baggy containing what appeared to be methamphetamine. The baggy held .36 grams of methamphetamine, which was a usable amount.

The information

In the People's information, Negrete was charged with possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1). Secondarily, he was charged with possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a).

The challenged ruling

During Negrete's case-in-chief at trial, his attorney announced that he was going to call Hernandez to the stand. The trial court held a sidebar conference to discuss whether the prosecution could inquire into Hernandez's gang affiliation. In ruling in favor of the prosecution, the trial court stated: â€