Opinion
B229658
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS LOPEZ, Defendant and Appellant.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA090259)
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
At the jury trial of defendant and appellant Jorge Luis Lopez for, among other things, attempted murder, the trial court admitted, over defense counsel's objection under Evidence Code section 352, evidence that the victims' house had been previously shot at. The jury convicted defendant of two counts of attempted murder and of one count of carrying a loaded weapon. He contends on appeal that the trial court abused its discretion and violated his due process rights by admitting the evidence. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Since about 2005, Monique Martinez and her husband, Baltazar Lopez (Baltazar), lived in a house on Shipman in East Valinda with other family members. The house is in an area connected to the Townsmen gang, a Hispanic gang with about 104 documented members. Defendant is an active member of the gang. The Townsmen gang commits murders, assaults, batteries, robberies, burglaries, extortion, weapon possession, vehicle theft, and narcotics sales.
Because defendant and Baltazar Lopez have the same last name, we refer to Baltazar Lopez by his first name to avoid confusion.
The parties stipulated that Townsmen is a criminal street gang.
In the five years Martinez and her family have lived at the house, it has been shot at six or seven times, and Los Angeles County Deputy Sheriff Robert Chism had investigated five incidents at the house. Martinez knew that these shootings were related to the Townsmen gang because once she recognized a car and she heard somebody say something about Townsmen. Martinez's husband, Baltazar, was a member of the El Monte Flores gang.
On March 1, 2010, at about 5:00 p.m., Martinez and Baltazar were in their front yard washing a car. Darkie from Townsmen slowly passed by in a car. At the end of the block, Darkie got out of the car and, putting his hands up, asked, " 'What?' " He drove away, and Martinez and Baltazar went inside the house.
About an hour later, defendant (Vandal), Darkie, and Tom approached the house, stopping in front of the driveway. Martinez had never before seen defendant, who had a large Townsmen tattoo on the back of his head. Martinez and Baltazar and another family member went outside, and Martinez picked up a bat. Darkie told Baltazar he needed to show some respect, that "this [is] Townsmen." Baltazar replied he knew where he was, and "[n]obody disrespects around here"—they just wanted to be left alone.
Boxer, Delfina, and a third woman arrived in a blue Suburban and argued with Martinez. Boxer said something like, "Fuck all your dead homies," and Martinez said, "Back to you." One of the women said that Vandal's "got it, he's got it." Around this time, Martinez's mother-in-law and sister-in-law, Sylvia Lopez, and her children arrived in a car. Defendant shot at Martinez and Sylvia, who was getting her baby out of the car. Martinez heard two shots. Defendant said, "Townsmen" and "This [is] Townsmen." Martinez and Baltazar ran toward the house, and defendant also ran. Darkie got into the Suburban.
During these events, Sylvia grazed her leg. The front door had a bullet hole, although that might have been from a prior shooting.
Martinez thought the bullet grazed Sylvia's leg, but an officer said Sylvia grazed her leg by falling.
The day after the shooting, defendant stood at the front gate to Martinez's house for a minute, and then he left.
On March 9, 2010, Martinez identified defendant from a photographic six-pack as the shooter.
On March 25, 2010, officers saw defendant and chased him, but he got away, although officers recovered a gun that defendant threw while running.
II. Procedural background.
On November 3, 2010, a jury found defendant guilty of counts 1 and 2, the attempted murders of Martinez and Sylvia Lopez (Pen. Code, §§ 187, subd. (a), 664), and of count 3, carrying a loaded weapon (§ 12031, subd. (a)(1)). As to counts 1 and 2, the jury found true allegations that the attempted murders were committed willfully, deliberately and with premeditation (§ 664, subd. (a)); that defendant personally used and discharged a gun (§ 12022.53, subds. (b) & (c)); and that the crimes were committed for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). As to count 3, the jury found true an allegation that defendant was an active participant in a street gang (§ 12031, subd. (a)(2)(C)).
All further undesignated statutory references are to the Penal Code.
On December 6, 2010, the trial court sentenced defendant, on count 1, to life with a 15-year minimum parole eligibility period, doubled to 30 years based on a strike that the court had previously found true. The court sentenced him to an additional 20 years for the gun enhancement (§ 12022.53, subd. (c)). He received the same sentence on count 2, but the court ordered it to run concurrent to count 1. On count 3, the court sentenced him to a consecutive 16 months (one-third the midterm of two years, doubled based on a strike).
DISCUSSION
III. Evidence that the victims' home had been shot at previously was admissible.
Defendant contends that the prior shooting incidents at the victims' home should have been excluded under Evidence Code section 352 and that the admission of those incidents violated his federal constitutional due process rights. We disagree.
A. Additional facts.
Before trial, defendant moved, under Evidence Code section 352, to exclude evidence that the victims' home had been previously shot at. The trial court found that the evidence might be relevant: "If the place has been shot up with regularity, it may be relevant in the sense that the reputation of the house is such that other gang members would know that rivals live there." The court added that the evidence was relevant to motive and intent.
During trial, Martinez testified that her house had been shot at five to seven times, and she knew that the shootings were related to the Townsmen gang because once she recognized a car and she heard somebody say something about Townsmen. Deputy Sheriff Chism investigated some of those prior incidents. On October 2, 2008, shots were fired, damaging the rear and den windows and rear door of the house. On October 3, 2008, more shots were fired, and two bullet holes were found in the garage. On December 22, 2008, Martinez reported that six to seven shots were fired, and ten expended casings were found on the street in front of the house. Martinez heard someone call " 'Puente.' " A bullet struck a car and the front stoop of the house.
There was no evidence, however, that defendant was involved in these prior incidents. And, during his closing argument, the prosecutor said he wasn't suggesting that defendant was involved in the prior incidents. Instead, the incidents showed that there was an "ongoing beef" with Townsmen.
B. The trial court did not abuse its discretion by admitting evidence of the prior shootings.
Evidence Code section 352 states: "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." The "prejudice" Evidence Code section 352 refers to applies to evidence which " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) But " ' "prejudicial" is not synonymous with "damaging." ' " (Ibid.) A trial court enjoys broad discretion under Evidence Code section 352, in assessing whether probative value outweighs undue prejudice, confusion, or consumption of time. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725; People v. Memro (1995) 11 Cal.4th 786, 864, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
The evidence was admissible, as the trial court found, on the grounds it was relevant to establish motive and intent for the current shooting. Martinez's home had been shot at before. Her husband, Baltazar, was a member of the El Monte Flores gang, and they lived in another gang's territory, namely, that of the Townsmen gang. During one of the prior shooting incidents, Martinez thought that Townsmen was involved because she recognized a car, presumably associated with the gang, and she heard someone call, "Townsmen." On the day of the shooting at issue, Darkie from Townsmen passed by their house in a threatening manner, and later, defendant and Darkie and other Townsmen gang members argued with Martinez and her husband about respecting the gang. The prior shootings therefore showed that Townsmen gang members had a motive for shooting at Martinez's house: Martinez's husband was a member of another gang and the Townsmen gang felt that Martinez's family was "disrespecting" Townsmen. The current shooting was a part of a campaign of intimidation.
It is not clear whether these were separate incidents or the same one.
Although defendant argues that the evidence tended to make him guilty by association alone, that is not so. There was no evidence or argument that defendant was involved in the prior shootings. To the contrary, Martinez testified that the first time she ever saw defendant was on the day of the shooting at issue, and she had "no idea" if he was involved in the prior incidents. Deputy Chism, who investigated some of those prior incidents, had no evidence that defendant was involved in them. The prosecutor told the jury he was not suggesting defendant was involved in those prior incidents. Thus, there was little likelihood that the jury would be confused or misled about defendant's involvement in the prior incidents. Rather, to the extent the prior shootings were gang related, they established a motive for the current shooting.
We also note that the prior shootings were relevant to establish whether any damage was done by the current shooting; namely, the house had damage resulting from the prior incidents, and officers could not tell whether the house sustained any new damage as a result of the current shooting.
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For the same reasons, we reject defendant's contention that admitting evidence of the prior shootings rendered his trial fundamentally unfair. Even where a trial court renders an erroneous evidentiary ruling, a defendant's due process rights are usually not violated. (Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi (1973) 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case]; People v. Falsetta (1999) 21 Cal.4th 903, 913.) As we have explained, the evidence was properly admitted.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
KITCHING, J.