Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01273
RAYE, Acting P.J.Defendant Carlos Alberto Melgar opened fire on Rupinder Singh in the middle of a residential street as the unarmed man attempted to outrun the bullets. One of the bullets hit Singh in the forearm, fracturing his right radius. Defendant’s stated reason for the violent assault: “I told that Punjabi not to run.” Less than two weeks later, defendant opened fire on an inhabited residence from the passenger seat of his girlfriend’s car as she slowly drove by the house. Six individuals were present in the house at the time of the shooting, including a 15-day-old infant. Defendant’s explanation for the drive-by: “Fuck Johnny Peralez.”
Johnny Peralez and defendant had a history. Peralez was involved in a sexual relationship with Cynthia Ramirez, the mother of one of defendant’s children. Several days before the shooting, defendant and Peralez had an altercation in the Canterbury Inn parking lot. Following an exchange of heated words and a brief car chase, defendant pulled a gun from his waistband and fired several rounds at the ground in front of the car carrying Peralez and Ramirez. Two days later, Peralez sent defendant a text message informing defendant that he could have Ramirez back for $50. The drive-by shooting occurred shortly thereafter.
During the jury trial, evidence of the Canterbury Inn shooting was introduced by the prosecution to establish defendant’s motive for the drive-by shooting. The jury found defendant guilty of various charges related to the drive-by shooting and the shooting of Singh, and the trial court sentenced defendant to state prison for nine years eight months plus a consecutive indeterminate term of 25 years to life.
On appeal, defendant claims the trial court prejudicially abused its discretion by allowing evidence of the Canterbury Inn shooting. As explained more fully below, defendant is incorrect. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
The Shooting of Rupinder Singh
Defendant and his girlfriend, Kelly Ward, pulled up to Sonny Motors on El Camino Avenue in Sacramento in a black Toyota Corolla. They were there to see Rupinder Singh. Defendant had previously purchased a “Tech 9” gun from Raj Grewal, a man he believed to be Singh’s cousin. Singh had assisted in arranging the transaction. Defendant later discovered that the gun did not fire. Defendant complained to Grewal about the gun and was told to “stick it up his ass and see if it fired” from that location.
Understandably angry, defendant and Ward drove to Sonny Motors to discuss the matter with Singh. Ward waited in the car while defendant found Singh and brought him back to the vehicle. As Singh got into the back seat, defendant pulled a chrome nine-millimeter handgun, handed Singh his cell phone, and told him to call his cousin. After an initial refusal, defendant explained, “make the phone call, otherwise I’m going to kill you.” Singh made the call. Grewal did not answer. Ward drove defendant and Singh to a gas station and then to Gary Shirley’s house on Laramie Lane, the location of the original conversation concerning the gun acquisition. On the way to Shirley’s house, defendant told Singh: “I want a gun or my money back, if you run I’ll shoot you.”
Upon their arrival at Shirley’s house, defendant knocked on the garage door and Shirley opened the side gate to let them in. Defendant was agitated and “yelling obscenities” about the nonoperational weapon. Shirley led the three to the garage. In the garage, Singh was able to make telephone contact with Grewal. The two spoke in Punjabi for a few minutes. Defendant told Singh to speak English. Singh ignored the command and continued in Punjabi. An infuriated defendant slammed Singh into the garage door and kicked him in the upper body. Singh, visibly shaken, told defendant that Grewal had agreed to meet him at the auto shop. Defendant, Ward, and Singh left the garage and began walking to the car, Singh first, then defendant, then Ward. Defendant again told Singh that if he tried to run, he would be shot.
Apparently, Shirley lives in his grandmother’s garage and has frequent visitors who knock on the garage door to gain admittance.
Undeterred by the renewed threat, Singh took off on foot the moment he reached the side gate. Defendant followed. From a position in the middle of Laramie Lane, defendant opened fire. One of the bullets struck Singh in the right forearm, fracturing his radius. The injury did not slow his progress down the street. Defendant told Ward to get into the car, and the two drove away. Defendant’s explanation: “I told that Punjabi not to run. That’s another one I got away with.”
Eventually, Singh jumped Diana Bandazian’s fence and pounded on her sliding glass door until the astonished woman opened it to find an exhausted and terrified man bleeding on her back patio. Her son dialed 911 and Singh was taken to the hospital.
The Drive-By Shooting at Rockbridge Road
Less than two weeks after the Laramie Lane shooting, defendant opened fire on an inhabited residence on Rockbridge Road from the passenger seat of Ward’s Corolla as she dimmed the headlights and slowly drove by the house. Defendant fired eight to 10 rounds at the house from the same chrome nine-millimeter handgun he used to shoot Singh. Defendant declared his motive for the shooting as he pulled the trigger: “Fuck Johnny Peralez.” While Johnny Peralez did not live at the house, the house was owned by his uncle Angelo Peralez, and Johnny visited regularly. Six individuals were present in the house at the time of the shooting, including Angelo; Peralez’s aunt, Mary; Peralez’s sisters, Cecilia and Melissa; Melissa’s boyfriend, Anthony Espinoza; and Cecilia’s newborn son.
Those members of the Peralez family who share the same last name will be identified herein by their first names.
Espinoza was on the porch smoking a cigarette when the shooting started. Cecilia had just changed her baby’s diaper. As bullets crashed through the baby’s room, she and her child fell to the floor for protection. Three bullet holes were found in the baby’s room. Bullet holes were also found in a hallway and in a red pickup truck parked in front of the house, and several were found in the exterior wall of the house. Shell cases found by police matched those found at the Laramie Lane crime scene. Fortunately, no one was injured or killed.
A few days after the shooting, Espinoza received a call from Ramirez, the mother of one of his children. Ramirez and defendant also had a child together. Cecilia listened in on the conversation from another phone in the house. During the conversation, defendant got on the line and explained that “the shooting was between him and . . . Johnny” and that it was none of Espinoza’s business. When Espinoza asked defendant if he knew that a newborn baby was in the house, defendant said, “yeah, my bad.”
The Canterbury Inn Shooting
Several days before the Rockbridge Road drive-by shooting, defendant and Johnny had an altercation in the Canterbury Inn parking lot. Defendant received a phone call from Johnny and immediately informed Ward that they were going to the Canterbury Inn because Ramirez was there with Johnny. Upon their arrival, defendant saw Johnny and Ramirez in a green Hyundai Accent. Defendant and Ward were in the same black Corolla involved in the drive-by shooting. Defendant and Johnny exchanged heated words: “[W]hat’s up, motherfucker, you know what I’m saying? Let’s do this, let’s fight, fuck it.” Johnny and Ramirez sped off in the Accent; defendant and Ward gave chase in the Corolla. The Corolla soon caught up to the Accent, and the Accent stopped. Defendant got out of the car, pulled his chrome nine-millimeter handgun from his waistband, and fired several shots at the ground in front of the Accent. The Accent again sped off into the night. This time, the Corolla did not pursue.
Two days later, Johnny sent defendant a text message informing defendant he could have Ramirez back for $50. Johnny also sent defendant several text messages explaining to him: “[W]hen I see you it’s on . . . [¶] . . . [¶] . . . you want to shoot at me, I’ll shoot back.” The drive-by shooting of Johnny’s uncle’s house on Rockbridge Road occurred shortly thereafter.
Motion to Exclude Evidence of the Canterbury Inn Shooting
Defendant moved to exclude evidence of the Canterbury Inn shooting pursuant to sections 1101 and 352 of the Evidence Code. After a brief argument, the court took the matter under submission. During the trial, after hearing evidence of the Laramie Lane and Rockbridge Road shootings, the trial court denied defendant’s motion to exclude evidence of the Canterbury Inn shooting.
The court first explained that the evidence of the Canterbury Inn shooting was offered to prove defendant’s motive for the drive-by shooting and therefore fell outside the prohibition against admission of character evidence to prove conduct: “The People offered this evidence and tendered the evidence for the purpose primarily of establishing, as I understand, the motive and setting some contextural information regarding the relationship between the parties in this case. [¶] Furthermore, since the gun which is similar to that which is described in the current charged offense is very similar to that used in the Canterbury incident, it’s also probative on the issue of the possession of such weapon. [¶] The Court, therefore, does find that it comes within an exception to the prohibition of character evidence and would be admissible as it is very relevant on the issue of the motive and also possession of the weapon.”
The court then conducted an analysis under Evidence Code section 352. The court noted the offense involved a gun, was serious and violent but did not result in actual injury to the parties, and was not more serious than the charged offense. It would not lead the jury to react with emotion and would not result in undue prejudice. Further, the evidence was highly probative given its closeness in time and “the dynamics of the relationship between the parties.” The probative value was not outweighed by any potential for undue prejudice to defendant.
Verdict and Sentencing
As to the charges related to the Laramie Lane shooting, the jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), kidnapping (Pen. Code, § 207, subd. (a)), false imprisonment by force (Pen. Code, § 236), and possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)). The jury also found that defendant personally used a firearm and inflicted great bodily injury. As to the drive-by shooting, the jury convicted defendant of discharge of a firearm at an inhabited dwelling (Pen. Code, § 246), discharge of a firearm from a motor vehicle (Pen. Code, § 12034, subd. (c)), discharge of a firearm at an unoccupied motor vehicle (Pen. Code, § 247, subd. (b)), and possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)). The trial court sentenced defendant to state prison for nine years eight months and a consecutive indeterminate term of 25 years to life.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court prejudicially abused its discretion by admitting evidence of the Canterbury Inn shooting. Defendant claims that admission of defendant’s prior, uncharged misconduct at the Canterbury Inn violated sections 1101 and 352 of the Evidence Code. We disagree.
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Pursuant to Evidence Code section 1101, subdivision (a), “evidence of a person’s character” is inadmissible “to prove his or her conduct on a specified occasion.” However, “evidence that a person committed a crime” is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, [or] identity . . .) other than his or her disposition to commit such an act.” (§ 1101, subd. (b).) “‘The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.]’” (People v. Butler (2005) 127 Cal.App.4th 49, 60 (Butler), quoting People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels); see also People v. Anderson (1987) 43 Cal.3d 1104, 1136; People v. Thompson (1980) 27 Cal.3d 303, 314-315 (Thompson).)
I. MATERIALITY
“In order to satisfy the requirements of materiality, the fact sought to be proved must be either an ultimate fact (such as an element of the offense) or an intermediate fact from which the ultimate fact may logically and reasonably be inferred.” (People v. Nible (1988) 200 Cal.App.3d 838, 847 (Nible).) While defendant’s motive is not an element of the crime, it is an intermediate fact from which such ultimate facts as defendant’s identity, criminal intent, and commission of the criminal act itself may be logically and reasonably inferred. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018 (Scheer); see also Thompson, supra, 27 Cal.3d at p. 319, fn. 23 [motive is an “intermediate fact” from which intent to kill, premeditation, and deliberation may be inferred]; People v. Roldan (2005) 35 Cal.4th 646, 705-706 [motive, intent, and identity are all material facts]; People v. Walker (2006) 139 Cal.App.4th 782, 796 [same as Roldan].) However, in order for a fact to be material, it must be actually in dispute or at issue. (Nible, supra, 200 Cal.App.3d at p. 847.)
Here, defendant’s motive to shoot at the Peralez house on Rockbridge Road was aggressively disputed by defendant. At trial, Cecilia testified she had overheard defendant admitting to the shooting while on the phone with Espinoza. According to Cecilia, defendant stated that “the shooting was between him and . . . Johnny.” On cross-examination, defense counsel elicited from Cecilia that Johnny did not live at the house, that Johnny was not present or expected to be at the house at the time of the shooting, and that Cecilia’s father had made several threats on her life and the lives of Angelo, Cecilia’s sisters, and the newborn baby.
These questions, and the answers elicited thereby, tended to place in issue defendant’s alleged motive for shooting at the Peralez house. Defendant’s position was that he had no motive for the shooting but, if so, certainly a lesser motive than that of Cecilia’s father. Thus, defendant’s motive was at issue and was therefore a material fact.
II. RELEVANCE
The main thrust of defendant’s argument on appeal is that the prosecution failed to establish “the required nexus between the confrontation at the Canterbury Inn and the Rockbridge shooting.” Defendant is mistaken.
“The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime.” (Scheer, supra, 68 Cal.App.4th at p. 1018; see People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) However, “‘the intermediate fact of motive’ may be established by evidence of ‘prior dissimilar crimes.’ [Citation.] ‘Similarity of offenses [is] not necessary to establish this theory of relevance’ for the evident reason that the motive for the charged crime arises simply from the commission of the prior offense. [Citation.] The existence of a motive requires a nexus between the prior crime and the current one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes. [Citations.]” (Scheer, supra, 68 Cal.App.4th at p. 1018; see also Butler, supra, 127 Cal.App.4th at p. 60 [describing the required nexus as a “‘direct relationship between the prior offense and an element of the charged offense,’” quoting Daniels, supra, 52 Cal.3d at p. 857].)
In People v. Pertsoni (1985) 172 Cal.App.3d 369 (Pertsoni), the Court of Appeal held that evidence of a prior uncharged shooting was admissible under Evidence Code section 1101, subdivision (b) as it was relevant to establish the defendant’s motive for the charged shooting. (Pertsoni, supra, 172 Cal.App.3d at p. 375.) There, the defendant, an Albanian, was charged with the murder of Fahri Repishti, a man the defendant believed to be a member of the Yugoslav secret police. In the prior uncharged shooting, the defendant had fired four shots at a man he believed to be the Yugoslav Ambassador. (Id. at p. 372.) As the court explained, when “the mere fact of the prior offense gives rise to an inference of motive, similarity of the offenses is irrelevant.” (Id. at p. 374.) The court concluded that evidence of the prior shooting was admissible because it tended “logically and by reasonable inference” to establish the defendant’s motive to kill a member of the Yugoslav government. (Id. at p. 375; see also Butler, supra, 127 Cal.App.4th at p. 61 [evidence of a prior confrontation with members of a party “relevant to explain appellant’s motive for the otherwise unprovoked attack” on one of the members of the party five days later]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613 [evidence of prior domestic abuse “properly admitted to show . . . motive” supporting inference that the defendant intended to kill his wife].)
Here, evidence of the Canterbury Inn shooting was admissible because it was relevant to establish defendant’s motive for the otherwise inexplicable drive-by shooting at the Peralez home. Shortly before the drive-by shooting, defendant and Johnny confronted each other in the Canterbury Inn parking lot. The verbal confrontation quickly turned into a car chase, which culminated in defendant’s firing several rounds at the ground in front of Johnny’s vehicle. These men clearly did not like each other. While Johnny was not present at the home at the time of the drive-by shooting, the fact that defendant yelled “Fuck Johnny Peralez” as he pulled the trigger leads to a reasonable inference that he either believed Johnny to be in the house or knew Johnny to be a frequent visitor. As was the case in Pertsoni, the mere fact of the prior shooting gives rise to an inference that defendant’s motive in the drive-by was to again violently confront Johnny with his nine-millimeter handgun.
While the previous crime need not be similar to the charged crime in order to be relevant to prove motive, here there is also a high degree of similarity. The same chrome nine-millimeter handgun was used during both crimes. The same car, driven by the same girlfriend, was involved in both crimes. Moreover, the jury could reasonably have concluded that the same individual, Johnny, was the intended target of both shootings.
We find that the required “nexus” or “direct relationship” exists between the two crimes.
III. EXCLUSIONARY POLICIES
Finally, we conclude that admission of the Canterbury Inn shooting did not violate any exclusionary policies. Defendant contends the trial court should have excluded this evidence as unduly prejudicial under Evidence Code section 352. “The probative value-prejudicial effect determination is committed to the trial court’s discretion.” (Nible, supra, 200 Cal.App.3d at p. 850.) Here, the trial court conducted a thoughtful and reasoned analysis under section 352 and concluded that the probative value of the evidence was not outweighed by any potential for undue prejudice to defendant. Important to that analysis was the fact that the prior shooting was strongly probative in light of its closeness in time to the drive-by shooting and the nature of the relationship between defendant and Johnny. In concluding that the probative value of the evidence was not outweighed by the danger of undue prejudice, the court explained: “I do not believe that it [the Canterbury Inn shooting] is more serious than the charged offense, and I don’t believe that the circumstances, when the jury has heard all of the information in the underlying offense, would lead the jury to react with emotion or based on a [sic] emotional reaction to such evidence, nor do I believe that, therefore, it would result in undue prejudice to Mr. Melgar.” We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., HULL, J.