P. v. Torres and Quintana

Filed 6/13/06 P. v. Torres and Quintana CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed as modified.

Thomas T. Ono, under appointment by the Court of Appeal for Defendant Oscar A. Torres.

Peter Gold, under appointment by the Court of Appeal for Defendant Jose Gilbert Quintana.

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Oscar Torres (Torres) and Jose Quintana (Quintana) appeal their convictions after a jury trial of first degree murder (Pen Code, § 187, subd. (a)) with true findings on gang and firearm use allegations (Pen Code, §§ 186.22, subd. (b)(b), 12022.53, subds. (b), (c), (d) & (e)). On appeal, they contend that (1) the trial court erred in admitting ballistics evidence concerning the firearm used in the crime; (2) the trial court erred in admitting gang evidence; (3) their first-degree murder convictions are not supported by substantial evidence; and (4) the trial court failed to define the target offense of assault with a deadly weapon. Quintana also requests us to amend his abstract of judgment to correct it to provide for an additional 11 days of presentence custody credits. We modify the judgment to award Quintana the proper amount of custody credits, and affirm it in all other respects.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Silvia Vidrio lived at 11250 Mariposa Avenue on a lot with two houses, one in the front and one in the rear. Mariposa Avenue intersects with Imperial Highway, and runs parallel with Raymond Avenue. There is an alleyway between the two streets than runs behind the houses and apartments on those streets. Next door to Vidrio's house was an apartment building. Separating the house and apartment was a six-foot high wall that stepped down to a portion that was three feet high; an area behind the apartment building was visible over the three-foot high portion of the wall. A walkway ran alongside the front house.

A. The Shooting and Investigation.

Sometime after midnight on June 3, 2005, the victim, Santiago Vidrio (Vidrio) arrived at his mother Silvia Vidrio's house with his friend Louis Cruz (Cruz). Cruz's brother-in-law and several other people were in the back of the house. Vidrio stopped in the house and came out the back. Cruz needed to make a cellular phone call, so he was walking towards the street with Vidrio so they could drive to the next block where the reception was better.

While they were walking, Vidrio was a couple of steps behind Cruz. Cruz smelled spray paint and could see someone peeking over the three-foot portion of the wall. Cruz recognized him as defendant Torres, although Cruz did not know his real name, but knew him as â€