Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA096477, Larry S. Knupp, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Gerardo Lopez (appellant) was convicted by a jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with the personal use of a firearm (§ 12022.5, subd. (b)). In a separate court trial, he was found to have served a prior prison term within the meaning of section 667.5, subdivision (b), and to have suffered a prior serious felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i) (the “Three Strikes” law), and 667, subdivision (a)(1). He was sentenced to 15 years in prison. He appeals, contending that the court erroneously admitted hearsay statements, evidence of a prior shooting, and evidence of gang membership. He asserts that the cumulative effect of the errors requires reversal. He also contends that there was insufficient evidence to support the assault conviction, and that the court abused its discretion by denying his Romero motion. We affirm the judgment.
All further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
Jose Mejia and his family lived on Hill Street in Walnut Park. Mejia and his son, also named Jose, had known appellant since appellant was a child. Appellant had initiated Jose into his street gang. In July 2006, appellant threatened to kill Mejia and Jose. Mejia believed that appellant threatened them because appellant had been shot and he thought Jose knew the identity of the shooter.
In order to avoid confusion, we will refer to Mejia’s son by his first name with no disrespect intended.
On July 25, 2006, at approximately 6:00 p.m., Mejia was at his home and heard gunshots. He went outside and saw numerous bullet holes in his truck. About two hours later, Mejia was on his porch and saw appellant drive by in his black Thunderbird. Appellant, who was by himself, pointed a black revolver at Mejia. Mejia called the police and Los Angeles Sheriff’s Deputy Alex Kim responded. Kim recovered five or six shell casings in the vicinity that appeared to have come from a .380 semiautomatic firearm. Deputy Catarino Gonzales, with the aid of a helicopter unit, followed a black Thunderbird driving away from the area, and saw appellant park the car and get out. The license plate on his car was 4LIE215. No weapon was found in the car or on appellant. Mejia told Deputy Gonzales that the gun appellant pointed at him was similar to Deputy Gonzales’s gun, which was a black semiautomatic pistol.
On July 26, 2006, Detective Michael Modica interviewed Lillian Diaz, who lived across the street from Mejia. She told him that she was sitting on her front porch with her son-in-law when she saw an older model black car driving slowly down the street. A Hispanic male was leaning out of the window of the passenger side, firing shots at Mejia’s truck. Diaz’s son-in-law told her that the car was a Thunderbird and that the license plate began with “4L.” Shortly before trial, Modica sat in on an interview that the deputy district attorney had with Diaz. Diaz told the deputy that she was afraid of retaliation.
At trial, Diaz testified and denied seeing the shooting and telling Detective Modica that it occurred, although she admitted hearing gunshots.
Appellant did not testify at trial. He called his uncle, Daniel Oppenheimer, as his sole witness. Oppenheimer testified that after appellant was arrested, Oppenheimer was talking to Jose outside Jose’s house. Mejia and his wife, Maria, came out. Oppenheimer apologized for appellant’s involvement in the incident. Mejia told Oppenheimer what he remembered about that day. He said appellant was standing next to his car and “flashing” a gun, holding it near the side of his leg. Mejia never said that appellant pointed the gun at him.
In rebuttal, the prosecution called Maria as a witness. She said that Oppenheimer was talking to Mejia and Jose when she came out. Oppenheimer apologized for appellant’s act of shooting at Mejia’s truck and said that appellant did stupid things when he drank beer.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence to uphold the assault conviction because there is nothing in the record that establishes he pointed a loaded gun at Mejia. Pointing an unloaded gun at a person does not constitute an assault. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3; People v. Reid (1982) 133 Cal.App.3d 354, 365.) However, circumstantial evidence may be sufficient to establish that the gun was loaded. (People v. Rodriguez, supra, at p. 12; People v. Orr (1974) 43 Cal.App.3d 666, 672.)
There was sufficient evidence to support the conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all of the elements of the crime of assault beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) We must presume every fact the jury could reasonably have deduced from the evidence. (People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.)
Mejia testified that appellant had threatened him and his son. A week later, appellant was seen shooting at Mejia’s truck, and bullet holes and casings were found afterwards. A few hours later, appellant drove by again and pointed a gun at Mejia. There was sufficient evidence for the jury to conclude that the gun was loaded, as it was obviously loaded earlier that day and appellant had demonstrated a willingness and present ability to fire the gun. (People v. Raviart (2001) 93 Cal.App.4th 258, 266-267; Orr, supra, 43 Cal.App.3d at p. 672.) The jury could reasonably conclude that appellant, a gang member, would not have returned to the scene of an earlier shooting with an unloaded firearm.
II. Evidentiary Issues
A. Hearsay from Diaz’s Son-in-Law
Appellant contends the court erred in admitting testimony from Detective Modica concerning what Diaz’s son-in-law said after the shooting.
Detective Modica testified that Diaz told him that the shooter was a Hispanic male in a black car. She then told him her son-in-law said that the vehicle was a Thunderbird and described the first two numbers on the license plate. Appellant’s counsel then objected without specifying a ground and the court stated, “Overruled for impeachment purposes.”
Appellant objects only to the admission of the statements made by Diaz’s son-in-law. He contends that the statements constitute inadmissible hearsay and that his Sixth Amendment right to confrontation was violated because he could not cross-examine the declarant.
As the People correctly point out, appellant’s objection at trial was only a general objection, and the court admitted the statements on the grounds that it could be used to impeach Diaz’s trial testimony that she and her son-in-law did not see anything. Appellant did not object further. Appellant forfeited his claim by failing to object to the son-in-law’s statements on hearsay or constitutional grounds. (People v. Seijas (2005) 36 Cal.4th 291, 302.)
In any event, we find that any error in admitting the statements was harmless. Diaz saw the shooter and the color of the car. At best, the son-in-law’s statements helped to identify appellant’s car. But Mejia had already identified appellant, said appellant had threatened him, said he knew what kind of car appellant drove, and observed appellant’s car in the neighborhood after the shooting. Deputy Gonzales followed the Thunderbird from the area of the shooting, and saw appellant park and get out of it. Appellant’s identity was not an issue in dispute, especially given the testimony of Oppenheimer. Therefore, the omission of Diaz’s son-in-law’s statement would not have altered the jury verdict. Reversal is not warranted. (See People v. Cage (2007) 40 Cal.4th 965, 993-994.)
We also find no violation of appellant’s Sixth Amendment right to confrontation. The case upon which appellant relies, Crawford v. Washington (2004) 541 U.S. 36, 51, applies to out-of-court statements that are testimonial in nature. Diaz’s son-in-law’s statements to his mother-in-law cannot be characterized as testimonial as they were not made in a police interview or at a court hearing. (Id. at p. 68.) Statements made on the street from one individual to another where neither is connected to law enforcement are simply not testimonial in nature. (See People v. Rincon (2005) 129 Cal.App.4th 738, 757.)
As we have addressed the merits of appellant’s claim, we need not address his assertion that counsel provided ineffective assistance by failing to object.
B. Evidence of the Prior Shooting
Appellant next contends that the court erred in allowing evidence about the earlier shooting of Mejia’s truck. He objected prior to trial, arguing that since he was not charged with that shooting, the evidence was irrelevant and prejudicial. The prosecutor responded that the evidence was probative on the issue of appellant’s motive and identity. The trial court stated, “It would seem to me under 532 [sic] that the testimony is more probative than prejudicial.”
When determining whether evidence of other crimes should be admitted, a court must consider (1) the materiality of the facts sought to be proved, (2) the probative value of the evidence, and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Daniels (1991) 52 Cal.3d 815, 856.) “Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. [Citation.] The matter lies within the discretion of the trial court. [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312, 380.) We review the trial court’s rule for abuse of discretion. (People v. Butler (2005) 127 Cal.App.4th 49, 60.)
We find no abuse of discretion in the trial court’s ruling. There was substantial probative value to the testimony as the two incidents occurred on the same day and involved the same armed perpetrator, vehicle, location, and victim. The prior shooting provided compelling circumstantial evidence that appellant was involved in both incidents and willingly brought a loaded firearm each time.
C. Gang Evidence
Appellant contends that the court erred in admitting evidence that he was in a gang. Prior to trial, his counsel objected on the grounds that the evidence was irrelevant and based on hearsay. The court stated, “It would seem to me it’s relevant as to motive. You can’t take these cases just out of the blue and out of context. If the context is, you know. This is a somebody who’s mad because of a gang problem, then it comes in.”
Evidence of gang membership is admissible if it is logically relevant to some material issue in the case, such as motive or intent, and is not more prejudicial than probative. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
The evidence that appellant and Jose were in the same gang was highly probative. It explained the level of violence that ensued when appellant believed that his fellow gang member, Jose, did not reveal the identity of the person who shot appellant. The evidence of gang membership also explained Diaz’s refusal to testify. She told the deputy district attorney that she was afraid to testify because she feared retaliation. Thus, the evidence that appellant was in a gang supported the credibility of Detective Modica’s testimony about what Diaz originally reported and explained her contrary testimony at trial. (People v. Gonzalez (2006) 38 Cal.4th 932, 947.) As the jury heard nothing more about the gang, the prejudicial effect of the evidence was minimal. The court properly admitted the testimony.
Appellant also raises the related contentions that his counsel was ineffective for failing to request a limiting instruction on the gang evidence and, alternatively, that the court had a sua sponte duty to give such an instruction. As we have concluded that the gang evidence was not highly prejudicial or inflammatory, a limiting instruction was not necessary. (People v. Farnam (2002) 28 Cal.4th 107, 163.) Both appellant and the victim’s son were in the same gang. There was no danger the jury would view appellant more harshly simply because of his gang membership. Accordingly, we find no merit to appellant’s claims. (Hernandez, supra, 33 Cal.4th at pp. 1052-1053.)
D. Cumulative Error
Finally, with respect to the alleged evidentiary errors, appellant contends that their cumulative effect warrants reversal. As we have concluded the trial court did not err, the contention has no merit.
III. Prior Strike Conviction
Following the verdict on the assault, the court found that appellant had suffered a prior conviction in 1997 for assault with a firearm, which qualified as a strike under the Three Strikes law. Appellant moved to dismiss the strike conviction prior to sentencing. Following argument by counsel, the trial court denied the motion without further comment.
Appellant had been granted probation for the 1997 conviction. However, he violated probation and was sentenced to three years in prison. Appellant also had a prior conviction in 2005 for inflicting corporal injury on a spouse, and had been sentenced to four years in prison. The court found that he had served a prior prison term pursuant to section 667.5, subdivision (b), but it struck the enhancement at sentencing.
In deciding whether to strike a prior conviction under the Three Strikes law, “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The court’s failure to dismiss or strike a prior conviction is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.) A trial court will be found to have abused its discretion only when it is not aware of its discretion to dismiss or where it considers impermissible factors in declining to dismiss. (Id. at p. 378.) Where the record is silent, the court is presumed to have correctly applied the law. (Ibid.; People v. Myers (1999) 69 Cal.App.4th 305, 310.)
We find no abuse of discretion in the trial court’s refusal to strike the prior conviction. Appellant had a history of violent crimes and had only recently been released from prison. Appellant has not met his burden of establishing that the trial court relied on irrational or arbitrary reasons in arriving at its decision.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., MANELLA, J.