Filed 4/21/15 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067368
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. LF009162A)
                   v.

JAVIER LOPEZ,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.

         John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Defendant Javier Lopez was convicted of attempted premeditated murder, assault
with a deadly weapon, and participation in a criminal street gang; the jury found true the
firearm use allegations. Following a subsequent court trial, the prior serious felony and
prior prison term allegations were also found true.
       On appeal, defendant asserts the trial court abused its discretion and violated his
due process rights by admitting evidence of prior misconduct pursuant to Evidence Code
section 1101, subdivision (b), and to the degree counsel failed to object, counsel rendered
ineffective assistance. Next, he maintains the trial court abused its discretion and his
Sixth Amendment right to confrontation by denying his request to impeach the victim’s
testimony with a prior felony involving dishonesty. Further, defendant argues the “jail
classification admissions were un-Mirandized, coerced, inadmissible” and in violation of
his due process rights, were inadmissible hearsay in violation of Crawford v. Washington
(2004) 541 U.S. 36, and counsel was ineffective for failing to move to exclude that
evidence under Evidence Code section 352 and the Sixth and Fourteenth Amendments to
the United States Constitution. Lastly, defendant asserts cumulative error. We will
affirm the convictions.
             BRIEF FACTUAL AND PROCEDURAL BACKGROUND1
       On July 31, 2012, Jesus Romo was walking on Montal Street in Lamont when he
stopped to speak with occupants of a vehicle. One of the car’s occupants—the front seat
passenger—got out of the vehicle and confronted Romo with a gun. Romo was shot in
the upper leg as a result of the confrontation. The gunman fled.
       Eventually, Romo admitted to law enforcement that he knew the shooter: Javier
Lopez. Both the victim and defendant have some history with the same southern
Hispanic gang known as the Lamont 13. It appears defendant shot Romo because Romo
was advising young Lamont 13 gang members not to listen to defendant. Kern County
Sheriff’s Deputy Mario Magana testified as a gang expert regarding southern Hispanic
gangs, including the Lamont 13 and its members and activities.



       1The relevant   facts will be explored more fully where appropriate in the discussion that
follows.

                                                 2.
       Defendant was charged by information with attempted murder (Pen. Code, §§ 664,
187), assault with a firearm (§ 245, subd. (a)(2)), and willful and unlawful active
participation in a criminal street gang (§ 186.22, subd. (a)). A variety of enhancements
were also alleged. Defendant was tried by a jury and convicted of all counts.
Codefendant Daniel Zaragoza was acquitted of all charges based on allegations he was
the driver of the vehicle on the instant occasion when Romo was shot. In a bifurcated
proceeding, the judge found prior serious felony and prior prison term allegations to be
true. Thereafter, defendant was sentenced to an indeterminate term of 39 years to life
plus a seven-year determinate term. This appeal followed.
                                      DISCUSSION
Evidence Code section 1101
       Defendant contends the trial court abused its discretion and violated his right to a
fair trial and due process when it permitted the admission of prior similar act evidence.
He claims no rational inference connected the instant charges to a prior incident where
Romo was shot at two or three months earlier. More specifically, he claims that although
the two incidents allegedly involve the same victim and defendant, this evidence should
not have been admitted to establish identity, intent and knowledge, motive, or common
scheme or plan. As a result, the evidence violated defendant’s constitutional rights and
was plainly prejudicial. To the degree defendant’s attorney did not object to the
admission of the evidence, defendant argues he rendered ineffective assistance of
counsel. We are not persuaded.
       Evidence Code section 1101 provides as follows:

              “(a) Except as provided in this section and in Sections 1102, 1103,
       1108, and 1109, evidence of a person’s character or a trait of his or her
       character (whether in the form of an opinion, evidence of reputation, or
       evidence of specific instances of his or her conduct) is inadmissible when
       offered to prove his or her conduct on a specified occasion.

              “(b) Nothing in this section prohibits the admission of evidence that
       a person committed a crime, civil wrong, or other act when relevant to
       prove some fact (such as motive, opportunity, intent, preparation, plan,

                                             3.
       knowledge, identity, absence of mistake or accident …) other than his or
       her disposition to commit such an act.”
“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.
Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such evidence is relevant to
establish some fact other than the person’s character or disposition.” (People v. Ewoldt
(1994) 7 Cal.4th 380, 393.)
       The trial court’s ruling under either Evidence Code section 1101 or section 352 is
reviewed on appeal for abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816,
865; People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Kipp (1998) 18 Cal.4th
349, 369, 371.)
       Evidence of crimes not charged in the present proceeding, though sometimes
admissible for the purposes set forth in Evidence Code section 1101, subdivision (b),
must be handled with care:

       “It is … well settled that evidence may be admitted, even though it
       embraces evidence of the commission of another crime, if it logically tends
       to prove a material element in the People’s case. [Citations.] However, ‘It
       has frequently been recognized … that because of the sound reasons behind
       the general rule of exclusion, the relevancy of evidence of other crimes, and
       therefore its admissibility, must be examined with care. [Citation.] The
       evidence should be received with “extreme caution,” and if its connection
       with the crime charged is not clearly perceived, the doubt should be
       resolved in favor of the accused. [Citations.]’” (People v. Guerrero (1976)
       16 Cal.3d 719, 724.)
       “‘Where a defendant is charged with a violent crime and has or had a previous
relationship with a victim, prior assaults upon the same victim, when offered on disputed
issues, e.g., identity, intent, motive, etcetera, are admissible based solely upon the
consideration of identical perpetrator and victim without resort to a “distinctive modus
operandi” analysis of other factors.’ [Citations.]” (People v. Kovacich (2011) 201


                                              4.
Cal.App.4th 863, 893, quoting People v. Zack (1986) 184 Cal.App.3d 409, 415; see Rufo
v. Simpson (2001) 86 Cal.App.4th 573, 585 [“The requirement for a distinctive modus
operandi does not apply when the prior and charged acts involve the same perpetrator and
the same victim. The courts have concluded that evidence of prior quarrels between the
same parties is obviously relevant on the issue whether the accused committed the
charged acts”]; see also People v. San Nicolas (2004) 34 Cal.4th 614, 668 [“‘evidence of
threats of violence by an accused against the victim of an offense is proof of the identity
of the offender’”].)
       Here, defendant was charged with a violent crime—attempted murder—against
Romo, an individual whom defendant had previously assaulted in an earlier drive-by
shooting. Defendant and Romo were both involved with the Lamont 13. The prior bad
act evidence was admissible because it is “‘based solely upon the consideration of
identical perpetrator and victim [and] without resort’” to other factors. (People v.
Kovacich, supra, 201 Cal.App.4th at p. 893; see Rufo v. Simpson, supra, 86 Cal.App.4th
at p. 585.) Further, evidence showing “‘quarrels, antagonism or enmity between an
accused and the victim of a violent offense is proof of motive to commit the offense.’”
(People v. Daniels (1971) 16 Cal.App.3d 36, 46; accord, People v. San Nicholas, supra,
34 Cal.4th at p. 668; People v. Shaver (1936) 7 Cal.2d 586, 592; People v. DeMoss
(1935) 4 Cal.2d 469, 473.)
       In closing argument, the prosecutor referenced proof of motive: “I don’t have to
provide evidence of motive in this case, but I did because motive is clear. Motive is
[defendant], Daniel Zaragoza, working together to kill Jesus Romo because Jesus Romo
disrespected [defendant], who wants to be the leader of the gang.” That same evidence
was referenced in the People's closing argument concerning intent, premeditation, and
deliberation.
       Even when evidence is relevant under Evidence Code section 1101, subdivision
(b), it must be excluded under section 352 if its prejudicial effect substantially outweighs
its probative value:

                                             5.
       “Our conclusion that section 1101 does not require exclusion of the
       evidence of defendant’s uncharged misconduct, because that evidence is
       relevant to prove a relevant fact other than defendant’s criminal disposition,
       does not end our inquiry. Evidence of uncharged offenses ‘is so prejudicial
       that its admission requires extremely careful analysis. [Citations.]’
       [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such]
       evidence,” uncharged offenses are admissible only if they have substantial
       probative value.’ [Citation.] [¶] … We thus proceed to examine whether
       the probative value of the evidence of defendant’s uncharged offenses is
       ‘substantially outweighed by the probability that its admission [would] …
       create substantial danger of undue prejudice, of confusing the issues, or of
       misleading the jury.’ (Evid. Code, § 352.)” (People v. Ewoldt, supra, 7
       Cal.4th at p. 404.)
       Therefore, having determined the challenged evidence was admissible, we next
assess whether the trial court properly exercised its discretion pursuant to Evidence Code
section 352. A court 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.” (Evid. Code, § 352.) A trial court retains the discretion to admit or
exclude evidence under section 352. The exercise of that discretion will not be disturbed
on appeal absent a showing that the trial court exercised its discretion in an arbitrary,
capricious or patently absurd manner. (People v. Hartsch (2010) 49 Cal.4th 472, 497;
People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
       Defendant complains the trial court failed to conduct the necessary Evidence Code
section 352 inquiry. “[H]owever, a court need not expressly weigh prejudice against
probative value or even expressly state that it has done so, if the record as a whole shows
the court was aware of and performed its balancing functions under Evidence Code
section 352.” (People v. Taylor (2001) 26 Cal.4th 1155, 1169.)
       The minute order of April 2, 2013, notes an in chamber, off-the-record discussion
regarding the motions in limine. As to codefendant Zaragoza’s motion in limine No. 7,2
the minute order reflects the following: “DEFENDANT ZARAGOZA MOTION IN

       2Zaragoza’s   written motion is not a part of the record on this appeal.

                                                 6.
LIMINE #7 IS JOINED BY [LOPEZ’S COUNSEL] AND IS DENIED.” The following
discussion ensued regarding the relevant motion in limine:

              “[THE COURT]: [Addressing codefendant Zaragoza’s motions in
       limine.] [Defense counsel for Lopez], as I understand, is joining in that
       motion.

              “[DEFENSE COUNSEL FOR LOPEZ]: Yes, Your Honor.

              “THE COURT: Okay. And these uncharged crimes deal only, as I
       understand it, with one incident attributed to [defendant] Lopez with a
       shooting or shooting attempt on Mr. Romo; is that right? [¶] … [¶]

             “[PROSECUTOR]: Yes, Your Honor. I believe there may be some
       evidence that will be used to prove gang participation that might fall under
       Defendant’s Motion 7.

               “THE COURT: In regard to that motion, it’s tentatively denied. And
       if there’s an issue that comes up during the trial that needs to be revisited,
       we can revisit it.”
       Hence, a review of this record establishes the court was aware of and performed
its required Evidence Code section 352 consideration because, although it did not
expressly reference the applicable statute or explain its more probative than prejudicial
finding, it left open the possibility of revisiting the issue during the trial. Evidence that
defendant previously targeted Romo is highly relevant to an understanding of the
circumstances behind the current offense. And although Romo is the only eyewitness to
the earlier event, as the prosecutor noted in his closing argument, Efrain Calvo’s
testimony can be interpreted to corroborate Romo’s testimony as to a previous incident
involving a gun.
       During direct examination, Romo testified he approached a black Honda on
Montal Street after recognizing defendant as its front seat passenger. Romo spoke first,
telling defendant he did not have any “bad intentions toward him” after an incident that
occurred a few months earlier in April. On that occasion Romo had been driving a truck
when someone began firing at it. The truck was riddled with bullet holes; Romo suffered
a burn when one of the bullets rolled down his neck. During cross-examination by


                                               7.
defendant’s attorney, Romo explained the truck was owned by a friend of his. As he
drove around, accompanied by two passengers, defendant stepped out from between two
parked cars and began firing. Romo did not report the incident to police. A neighbor
took photographs of the truck and forwarded them to Romo.
       Romo also testified about a conversation he and defendant had when Romo was in
custody for failing to appear as ordered in this case. Defendant told Romo that he “fe[lt]
bad” for shooting him in the leg, and that if he could go back to that day, he would have
handled it differently.
       Efrain Calvo was a resident of Montal Street in Lamont. On the evening of
July 31, 2012, he heard what he initially believed to be fireworks and then arguing. He
determined the sound was gunfire and looked outside. He heard someone yell, “That’s
what you get for talking shit. By the way, that was a drive-by bitch.”
       All things considered, the significant probative value of evidence concerning the
animosity between Romo and defendant outweighed the probability that its admission
would necessitate undue consumption of time or create substantial danger of undue
prejudice. The trial court did not err by admitting it.
Request to Impeach Victim’s Testimony
       Defendant maintains the trial court abused its discretion and violated his Sixth
Amendment right to confrontation when it denied his request to impeach Romo’s
testimony with a prior felony conviction involving dishonesty.
       Evidence Code section 788 authorizes admission of a prior felony conviction for
“the purpose of attacking the credibility of a witness.” A felony conviction is admissible
under Evidence Code section 788 only if the felony involves “moral turpitude.” (People
v. Castro (1985) 38 Cal.3d 301, 317.) Also, prior misdemeanor conduct involving moral
turpitude is admissible impeachment evidence. (People v. Wheeler (1992) 4 Cal.4th 284,
295-296, superseded by statute on another point in People v. Duran (2002) 97
Cal.App.4th 1448, 1459-1460.) The belief is that “[m]isconduct involving moral
turpitude may suggest a willingness to lie.” (Wheeler, at p. 295.) Therefore, such

                                              8.
evidence is routinely deemed relevant to credibility determinations, subject to a trial
court’s broad discretion under Evidence Code section 352. (Wheeler, at p. 296.)
       In reviewing on appeal a trial court’s decision to allow impeachment of a witness
with a prior felony conviction involving moral turpitude, we apply the abuse of discretion
standard. (People v. Clark (2011) 52 Cal.4th 856, 932.)
       Here, counsel for defendant moved for leave to impeach Romo with a prior
forgery conviction. The offense of forgery does involve moral turpitude. (People v.
Parrish (1985) 170 Cal.App.3d 336, 349.) More particularly, during the hearing on the
motions in limine, the following occurred:

               “[THE COURT:] Then in regard to Number 5, the motion for leave to
       impeach prosecution witness Jesus Romo with the prior of forgery from
       2000, my tentative is to deny based on the appropriate factors, including the
       age of the conviction, the nature of the conviction, and the prejudicial effect
       in regard to the probative value, and then, also, given the lack of any
       significant criminal record other than what I understand would be an
       infraction since that date. [¶] [Defense counsel]?

               “[DEFENSE COUNSEL FOR LOPEZ]: Your Honor, Mr. Romo is the
       alleged victim in this case. He’s really the only witness who can testify that
       [defendant], my client, was the man that shot him; so his credibility, in this
       case, is probably the primary issue that the jury has to consider.

              “Given the fact that he has this 2000 conviction for felony forgery,
       which is obviously a felony, crime of moral turpitude for which he went to
       prison for, it’s not too remote, given it was in the year 2000 and the fact it
       was a felony, went to prison, I think, is significant. I’d ask that that matter
       be admissible.

              “THE COURT: [¶] … [¶] Mr. [Prosecutor]?

               “[PROSECUTOR]: Your Honor, I agree with the Court’s tentative
       ruling, based on the age of the conviction being 13 years ago and the fact
       that Mr. Romo has not had any other serious violations with the law since
       then, I believe it should be kept out. I believe if Mr. Romo were a
       defendant, I think most Courts would keep that out due to the age of his
       conviction. [¶] On that, I’ll submit it.

              “THE COURT: Tentative will be the order of the Court.”
       The trial court considered the appropriate factors in making its determination.

                                              9.
       “In exercising its discretion, the trial court must consider four factors
       identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441,
       453 …: (1) whether the prior conviction reflects adversely on an
       individual’s honesty or veracity; (2) the nearness or remoteness in time of a
       prior conviction; (3) whether the prior conviction is for the same or
       substantially similar conduct to the charged offense; and (4) what the effect
       will be if the defendant does not testify out of fear of being prejudiced
       because of the impeachment by prior convictions.” (People v. Mendoza
       (2000) 78 Cal.App.4th 918, 925.)
Although the trial court is required to consider the Beagle factors, the factors “need not
be rigidly followed.” (Ibid.)
       Defendant argues that in this circumstance only the first two Beagle factors apply.
We agree. He contends then that the first factor “weighs heavily in favor of admission”
of Romo’s prior conviction for forgery and that the court “rel[ied] entirely on a finding
that the 13-year-old prior conviction was too remote.” We do not agree with this
characterization, however.
       A review of the foregoing excerpt reveals the court considered whether the forgery
conviction reflects on an individual’s honesty or veracity, to wit: “my tentative is to deny
based on the appropriate factors, including the age of the conviction, the nature of the
conviction, and the prejudicial effect ….” (Italics added.) When the witness subject to
impeachment is not the defendant, the primary factors for consideration are whether the
conviction (1) reflects on honesty, and (2) is near in time. (People v. Clair (1992) 2
Cal.4th 629, 654.) While a conviction for forgery plainly reflects upon one’s honesty,
Romo’s conviction was not near in time. It was 13 years earlier, and nothing of
significance followed. Defendant’s reliance on In re Hyde (2007) 154 Cal.App.4th 1200
and People v. Antick (1975) 15 Cal.3d 79, disapproved on other grounds in People v.
McCoy (2001) 25 Cal.4th 1111, is misplaced because those cases are distinguishable.
Hyde concerned the appropriateness of a past conviction for purposes of a parole
determination. And the forgery convictions at issue in Antick were those suffered by the
defendant himself. Neither are we persuaded by defendant’s citation to People v.
Stevenson (1978) 79 Cal.App.3d 976, 989-990 (error to rigidly apply Beagle guidelines).

                                            10.
Additionally, remoteness alone may form a sufficient basis for exclusion of evidence
under Evidence Code section 352. (See People v. Pitts (1990) 223 Cal.App.3d 1547,
1554.)
         In sum, the trial court’s determination is supported by its proper consideration of
the relevant material facts and legal principles. There is no basis upon which to find it
abused its broad discretion in this circumstance. (People v. Knoller (2007) 41 Cal.4th
139, 156; People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
Gang Evidence: Jail Classification and Out-of-Court Police Evidence
         Defendant contends the jail classification admissions were “un-Mirandized,”
coerced, inadmissible, and violative of his right to due process and a fair trial. Further, he
argues the out-of-court police evidence regarding gang affiliation was inadmissible
hearsay pursuant to Crawford v. Washington, supra, 541 U.S. 36. Lastly, defendant
maintains trial counsel was ineffective for failing to move to exclude the aforementioned
evidence under Evidence Code section 352 and the Sixth and Fourteenth Amendments to
the United States Constitution.
         Defendant has waived the foregoing contentions by failing to object below. (Evid.
Code, § 353, subd. (a).) Nevertheless, defendant asserts his trial counsel was ineffective.
(Strickland v. Washington (1984) 466 U.S. 668; People v. Ledesma (1987) 43 Cal.3d
171.) However, “‘the record on appeal sheds no light on why counsel acted or failed to
act in the manner challenged. In such circumstances, unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation, these cases are affirmed on appeal. [Citation.]’” (Ledesma, supra, at p.
218.) We will affirm
         Notwithstanding the failure to object below, any error was harmless. The
evidence of defendant’s gang ties extended well beyond the jail classifications and “out-
of-court police evidence” about which defendant complains.
         Specifically, defendant’s gang-related tattoos include the words “Estillo ocho
cuarenta y cinco” (845 Style) referring to the prefix for Lamont, an image of a Mayan

                                              11.
Aztec war shield in the shape of an “L,” three dots on the web of his left hand that signify
southern gang membership, an image on his head of a smoking double-barreled shotgun
that refers to a previous incident on Pierce Avenue, and a tribute to his deceased brother
Ponchin on his left arm. Further, defendant is known by the gang monikers “Sniper,”
“Moncies,” and “Wicked,” and has been photographed with known gang members
displaying gang signs and weapons while wearing gang colors or paraphernalia.
Significantly, too, after defendant’s arrest for the instant offenses and his interview with
authorities that did include Miranda warnings, defendant indicated “Lamont” when
asked about gang associations in jail during that particular booking process.
       Even assuming error, any error was harmless because the admissible evidence
overwhelmingly established defendant’s gang affiliation.
Cumulative Error
       Defendant asserts cumulative error requires reversal. However, because we have
found no errors in defendant’s three arguments on appeal, his claim of cumulative error
fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18
Cal.4th 297, 335.)
                                      DISPOSITION
       The judgment is affirmed.
                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
SMITH, J.




                                             12.
