P. v. Nunez

Filed 3/24/06 P. v. Nunez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary

S. Paer, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio, Jonathan J. Lynn and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

Isaias Nunez appeals his conviction for second-degree murder on the ground the trial court admitted an excessive amount of gang evidence. We find the gang evidence was highly probative to several issues in the case, was not unduly prejudicial, and did not violate Nunez's right to due process or a fair trial. Accordingly, we affirm the judgment.

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Nunez and Alejandro Mejia were members of the Sycamore Street gang. One day, Nunez picked up a handgun from fellow member Edwin Molina. Nunez and Mejia then set off in Nunez's father's pickup truck. While driving in the territory of rival gang UBC, they spotted a carload of UBC members waiting at a stop sign. Nunez stopped the truck in the middle of the street, and Mejia emerged with the gun. He fired two or three shots toward the car, one of which struck and killed passenger Jesse Renteria. Mejia then hopped back in the truck, and he and Nunez sped away.

In the wake of this incident, Sycamore Street held a meeting during which Nunez said he and Mejia shot a guy from UBC. A short time later, Nunez and Mejia went to Mexico. Nunez returned a couple of months later, but Mejia is believed to have died on the lam. In a letter to Molina, Nunez warned of the ongoing police investigation and possible payback from UBC. He also told Molina their gang needed a new gun because the one used in the shooting had been thrown away.

Upon arrest, Nunez initially denied any involvement in the shooting. Eventually, though, he admitted he was the driver. He told police that on the day in question, he was going to the carwash when he saw Mejia and obliged his request for a ride. When they came upon the victim's car, Mejia asked him to stop because he recognized the people in it. Nunez told police he did not know Mejia had a gun. He claimed he was duped by Mejia and had no idea he intended to shoot anybody. Nunez also denied being a member of Sycamore Street.

Gang expert Richard Ashby testified Sycamore Street has many of the traits of a traditional Hispanic gang. For example, it claims a specific territory and its members have monikers and tattoos and use graffiti to mark the gang's territory. The gang also uses the symbol â€