Opinion
D041447.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JAVIER GUERRERO, Defendant and Appellant.
A jury convicted Javier Guerrero of first degree murder (Pen. Code, § 187, subd. (a)) while personally discharging a firearm (§ 12022.53, subd. (b)), attempted premeditated murder (§§ 664/187, subd. (a)), while personally discharging a firearm (§ 12022.53, subd. (c)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The court sentenced him to prison for 70 years to life: 25 years to life for first degree murder, enhanced 25 years for personally discharging the firearm, and life for attempted premeditated murder, enhanced 20 years for personally discharging a firearm. The court stayed sentence for being a felon in possession of a firearm. (§ 654.) Guerrero contends the trial court erred in denying his motion to prevent the prosecution and witnesses from referring to him by his nickname "Bullet."
FACTS
In April 2002, Jorge "Coco" Mejia and several others lived in a home on Birch Street. Guerrero slept in a car outside the home. On April 27, Guerrero and Raymond "Flaco" Luna got into an argument with of one of the residents of the home, Jorges brother Luis Mejia. Another brother of Jorge, Jeronimo Mejia, told Luna and Guerrero to leave. Luna and Guerrero left angry. That evening, Luna called Jorge. Over a cellular telephone, Luna asked Horace Montejano, a passenger in Jorges car, if he "pinched" some marijuana Luna had left with Jorges wife. Montejano denied taking the marijuana. Jorge drove with Jeronimo and Montejano to meet Luna at T Street. Luna, Guerrero and Adriana Zermeno were in Lunas parked Jeep Cherokee when they arrived.
Jeronimo Mejia, Adriana Zermeno, Horacio Montejano, and Raymond Luna testified about the killing. When Jorge arrived at T Street, he and Luna began to talk. Jorge became angry when he saw Guerrero with Luna and asked Luna why Guerrero was with him. Guerrero said something to Jorge, got out of the Cherokee, walked to its front, and argued with, and "mad dogged," Jorge. Guerrero pulled a gun and shot Jorge in the head from about six inches away. Jorge died. Guerrero then went around Jorges car and shot at Jorges brother from about two and one-half feet. He missed but caused a gunpowder burn on Jeronimos face.
On May 4, 2002, police saw Guerrero walking on the street. They ordered him to stop and raise his hands. Guerrero did not stop, walked faster, and pulled something from his waistband. When Guerrero pulled what the officer believed to be a knife and thrust it toward the officer, the officer shot him. A pair of pliers but no weapon was found near Guerrero.
The only witnesses the defense called were a police detective who testified that Jeronimo told him that Lunas father, whose stepdaughter lived near the scene of the shooting, came to the car window, pointed a gun at Jeronimo and told him to leave or he would kill him; and an attorney who testified that Jeronimo was granted immunity regarding the use of his testimony at the trial.
DISCUSSION
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review for abuse of discretion the trial courts determination that the probative value of allowing the witnesses to use Guerreros nickname was not substantially outweighed by undue prejudice. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9.) No abuse of discretion will be found unless the trial court exercised its discretion "in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (Id. at pp. 9-10; People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
Here, the defense moved in limine to exclude reference to Guerrero by his nickname "Bullet." The prosecutor responded that no witness knew Guerreros true name and the witnesses would not know who he was talking about if he used Guerreros real name. Additionally, the victims brother told the victims wife that Bullet shot his brother. The court ruled:
"Well, I think the witnesses are going to refer to him by name and I think its going to come in. Im willing to give a curative instruction in terms of — I dont mean curative, but a limiting instruction in terms of the fact that the jury shouldnt speculate as to the meaning for any nicknames.
"Now, I can say to them something along the lines of you will hear the defendant referred to as Bullet, but you are not to speculate, because the fact of the matter is it may well be because of his speed in running. It may be as a result of a number of things. You are not to speculate as to that.
"I think thats the most realistic answer to that problem. I see it as a problem, but I dont think its going to be curable. And I think we are going to get into more trouble if we try to make a big deal out of it than if we just accept it and at least caution the jury not to be speculating about what nicknames mean because they have all got nicknames, and this particular nickname may have nothing to do with what they have assigned to it if they think of it as a projectile coming out of the end of a gun."
Before trial testimony commenced, the trial court advised the jury:
"Ladies and gentlemen, you are going to hear some evidence this afternoon relating to some nicknames that people are going to be referred to by, and one of those nicknames is Bullet. Now, heres where we are. I dont want you to speculate as to what it was that caused this individual to be know by the name Bullet. Because honestly, we dont know whether its because he is speedy or for some other reason. All right? And it would be imminently unfair for you to consider that as some sort of evidence of guilt, especially in a case of this kind.
"Is there anyone who feels they cant separate that and just say thats his nickname, thats all there is to it? Because at this point again, it would be imminently unfair to consider any other interpretation or to speculate. All right. Thats the court order."
Relying on Evidence Code section 352, Guerrero argues the use of his nickname was more prejudicial than probative and prejudiced the jury. He argues the effect of the courts special instruction was like trying to unring a bell. However, the court gave the special instruction before the jury heard anyone mention Guerreros nickname. It was not unreasonable for the trial court to find that the use of Guerreros nickname had probative value since the nickname was how witnesses knew Guerrero. On the other side of the balance, prejudice under Evidence Code section 352, refers to evidence that uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Because Guerrero could have had the nickname Bullet because of his speed, as the trial court advised the jury, the trial court could have reasonably concluded the use of Guerreros nickname would not have an unduly inflammatory effect on the jury. (See People v. Beyea (1974) 38 Cal.App.3d 176, 194.)
DISPOSITION
The judgment is affirmed.
I CONCUR: NARES, Acting P. J.
I CONCUR IN THE RESULT: McDONALD, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise specified.