P. v. Armenta

Filed 7/3/07 P. v. Armenta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert George Sptizer, Judge. Affirmed with directions.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Demetrio Armenta of first degree murder (Pen. Code, 187, subd.(a)), during a carjacking (Pen. Code, 190.2, subd. (a)(17)(L)), carjacking (Pen. Code, 215, subd. (a)) and possession of a handgun by an ex-felon. (Pen. Code, 12021, subd. (a).) With regard to the murder and carjacking, the jury further found that defendant had discharged a firearm, causing death. (Pen. Code, 12022.53, subd. (d).) He was sentenced to prison for 25-years-to-life and life without the possibility of parole. He appeals, claiming evidence was improperly admitted and insufficient evidence supports the discharge true findings and his conviction of being an ex-felon in possession of a firearm. We reject his contentions and affirm, while directing the trial court to amend the abstract of judgment to correct an omission in it.

I.

Facts

On September 25, 2002, in Riverside, defendant, an Orange County resident and ex-felon, whose gang moniker was Bandit, fatally shot his friend, also an Orange County resident who owned a Camero. Defendant took his car. Further facts will be discussed as they are relevant to the issues addressed.

II.

Issues and Discussion

1. Admission of Evidence of a 1991 Carjacking

Before trial began, the People sought permission to introduce evidence that defendant had participated in a carjacking in 1991. In their moving papers, the People stated that defendants version of his involvement in the 1991 offense was that while it had been committed by a fellow gang member and he was in the vicinity, he was not involved, and after it was over, the fellow gang member gave him a ride in the stolen car, in which both were later apprehended by police. The People stated, in relation to the instant offense, that defendant had told both the police and his girlfriend that he and the victim had gone to the home of a drug dealer, the victim had left in the latters car with a drug dealer, and sometime later, the dealer returned in the victims car, without the victim, and turned the car over to defendant who then drove it to where he was eventually arrested. Defendant had also told police a different version in which he was driving around, spotted the victims car,^[1]which was being driven by a stranger named Frank, who gave him the keys because defendant had expressed an interest in buying the car and he was test driving it shortly before being arrested. The People contended that defendants version of both sets of offenses was similar and the fact that he pled guilty to robbery and carjacking in connection with the 1991 incident proved his intent with regard to the instant carjacking.

At the hearing on the motion, the People added that they also intended to introduce the 1991 crimes as predicate offenses relative to gang enhancement allegations which had been made.^[2] Defendant countered that the 1991 incident was too remote to

demonstrate defendants intent with regard to the current crimes, that defendants version of the earlier event was not similar to his version of the instant offenses, that it was being offered only to show defendants propensity to commit carjackings, and, if successful in opposing introduction of the 1991 incident for anything other than proof of a predicate offense, he intended to request a limiting instruction to prevent the jury from using it for any other purpose. The trial court ruled that evidence of the 1991 incident was relevant at least to defendants intent during the current carjacking, in that his excuses for both were similar and, therefore, the evidence was admissible under Evidence Code section 1101, subdivision (b).^[3] The court further concluded that the relevance of this evidence substantially outweighed its prejudice. Defendant here contends that the trial court abused its discretion (People v. Gray (2005) 37 Cal.4th 168, 202) in making this ruling.

In contending that the trial courts determination that evidence of the 1991 incident was relevant to show defendants intent during this carjacking was arbitrary, capricious, or patently absurd (id.), defendant asserts that the court below apparently [did not] consider[] . . . what intent in the charged offenses to which it might be relevant. The courts asserted lack of consideration is not so apparent to this court. The intent at issue was the intent to steal the victims car. Defendant, himself, in his opening brief, acknowledges that this is precisely what the prosecutor argued below to the jury. From his faulty premise, defendant asserts that the evidence was admitted to show his disposition to commit carjacking. It was not.^[4] Defendant next asserts that the limiting instruction given did not prevent the jury from using the 1991 incident as propensity evidence. However, defendant, himself, acknowledges that the jury was instructed that it could not use this evidence to show that he had a disposition to commit crimes. Further, defendant concedes that the instruction informed the jury that the evidence may be considered . . . only for the limited purpose . . . if it tends to show that, of determining the existence of the specific intent which is a necessary element of the crimes or special allegations charged in this case. [] . . . Youre not to consider or discuss this evidence for any other purpose.

Defendant also contends that the trial court abused its discretion in determining that the relevancy of this evidence outweighed its probative value. In this regard, he reasserts the argument he made unsuccessfully below, that the passage of 10 years between the two incidents demonstrated the irrelevancy of the disputed evidence. We disagree. Defendant also focuses on the wrong facts in asserting that the two incidents were not similar. He points out that the earlier one was initiated by someone other than defendant. First, the evidence before the trial court at the time it ruled on the motion did not establish that someone other than defendant had initiated the first incident.^[5] Moreover, who initiated either incident is irrelevant. The similarities in the two incidents were not important. What was significant were the stories defendant offered in both instances as to how he came to be in stolen cars.

Contrary to defendants assertion, this evidence was not admitted to show habit, at least not in terms of defendant having a habit of carjacking.

Defendant is incorrect that this case is dissimilar from People v. Ricketts (1970) 7 Cal. App.3d 441, upon which the trial court relied below. In Ricketts, the defendant asserted that he came into possession of what turned out to be a stolen car when he borrowed it from a friend at MacArthur Park, who assured him that it was not stolen. (Id. at p. 444.) The prosecution introduced evidence that defendant had told police seven months earlier that he came into possession of a stolen car when he had borrowed it from a friend at MacArthur Park. (Id at pp. 444-445.) He later pled guilty to illegally driving/taking a car. (Ibid.) The Ricketts court held, The evidence [of the earlier incident] . . . was highly relevant as tending to establish that the defense testimony about the friend in MacArthur Park loaning defendant the car, was fabricated. From such evidence it could reasonably be inferred that defendant had a pat or ready alibi for use when stopped in a stolen car. The trial court properly exercised its discretion in admitting the evidence. (Id. at pp. 445-446.) Defendant asserts that the facts in Ricketts are clearly distinguishable from those here but does not say how. They, in fact, are not.

Finally, defendant contends the evidence should have been excluded under Evidence Code section 352 because its admission would cause undue consumption of time, create undue prejudice, confuse the issues and mislead the jury because it may have caused jurors to speculate that if he did it before, he did it this time. The presentation of this evidence did not consume undue time and under the instruction given, the jury could not have speculated that if he committed the 1991 carjacking, he also committed these crimes.

2. Insufficiency of the Evidence

Defendant contends there was insufficient evidence that he personally discharged a firearm proximately killing the victim and that he was an ex-felon in possession of a firearm. We disagree.

There was evidence that defendant, and no one else, wanted the victims car, and the victim was passionate about his car^[6]and would fight to keep someone else from taking it. On the other hand, defendant had a temper and was unemployed, thus lacking the means to purchase the car. Defendant went to great lengths to provide himself and his friend, Sy Franklin, but no one else, an alibi, and he acted as though he were the brains of his gangs operations.^[7] Defendant admitted many times, including to the police that he was alone in the Camero with the victim shortly before the crimes and he, alone, had brought the victim to Riverside. Soon after the crimes, defendant used his cell phone, which was found the next day plugged into the Cameros cigarette lighter, to call his friends, telling one that he, not we, needed the code to get into a gated community in Riverside where he later parked the car. He told his live-in girlfriend and his married girlfriend that he eitherbought the car from someone in the Casa Blanca area of Riverside or got it in repayment for a debt owed him the night of the murder. He showered and washed his clothes shortly after the murder. He was alone in the car on the day after the crimes when he picked up the female whom he was with when he was arrested. His brother told the police that the victim would be brought to Riverside to be shot because the defendant had friends there. Defendant used his cell phone to call his friends and brother shortly after the crimes while moving from the Riverside area to his home in Garden Grove and back to Riverside the next day.^[8] Although Sy Franklins and

associate gang member Noel Garcia, Jr.s fingerprints were on the Camero, defendant explained to police that he had driven the car to Franklins house the day after the crimes to show it off and both were present. Also, Garcia, defendant and a fellow gang member worked on the car the morning after the crimes removing its stereo equipment. When defendant was first confronted by the police after the crimes, he lifted up his shirt to show that he was not armed, implying that the police had reason to believe that he had a gun. During a recorded conversation between defendant and his brother at the jail, defendant told his brother that the detectives thought that he and the member of the gang that was associated with his gang had committed the crimes, but [the latter] was nowhere around. When defendants brother added, And you were nowhere around[,] defendant said, And I was nowhere around.  . . . [T]heres nobody . . . cause we were by ourselves . . . 

The foregoing provides a sufficient basis upon which the jury could reasonably conclude that defendant was the person who shot the victim. As defendant correctly

points out, evidence placed a skinny Hispanic man with defendant and the Camero at the friends house inside the gated Riverside community, but this was about two hours after the crimes. Despite defendants insistence that the presence of this skinny Hispanic man means that the latter could have been at the scene of the crimes and been the trigger man, it does not mean that the jury could not reasonably have relied on the much more substantive evidence mentioned above to conclude that defendant was alone with the victim when the crimes occurred. Someone shot the victim. The above-described evidence demonstrates that defendant, and no one else, had both the opportunity and the motive to do it.

III.

Disposition

The trial court is directed to amend the abstract of judgment to include the fact that defendant was convicted of count 3, possession of a handgun by an ex-felon. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] In this version, he claimed not to know the victim.

^[2] The trial court ruled that the 1991 incident could be so used. The jury later made not true findings as to all these allegations.

^[3] Evidence Code section 1101, subdivision (b) states: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

^[4] Therefore, we necessarily reject defendants contention that his due process rights were violated by admission of evidence to show disposition.

^[5] This evidence did not come out until the victim of the 1991 incident testified at the instant trial.

^[6]The victims mother testified that over the years the victim owned the Camero, she had given him a lot of money to have work done on it and shortly before the crimes, the victim was redoing the whole inside of the car.

^[7] The prosecutions gang expert testified that defendant told another officer that his father had helped found the gang to which he belonged and was the shot caller in the gang.

^[8] Interestingly, he never told any of his friends or his brother that the victim had driven off in the Camero with a drug dealer, but had not returned.