Filed 7/3/14 P. v. Delacruz CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058118

v.                                                                       (Super.Ct.No. SWF10001241)

MICHAEL WAYNE DELACRUZ,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, and

Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.




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                                               I

                                     INTRODUCTION

       On January 17, 2013, a jury convicted defendant and appellant Michael Wayne

Delacruz of the first degree murder of Ruben A. under Penal Code1 section 187,

subdivision (a), and found true a drive-by shooting special circumstance under section

190.2, subdivision (a)(21) and a personal gun use enhancement under sections 12022.53,

subdivision (c) and 1192.7, subdivision (c)(8). The trial court sentenced defendant to life

without the possibility of parole and imposed a consecutive twenty-year sentence for the

firearm enhancement.

       On appeal, defendant contends that the trial court erred in admitting gang

evidence. For the reasons set forth below, we affirm the judgment.

                                               II

                                 STATEMENT OF FACTS

       In the early morning hours of May 31, 2010, Ruben A. (the victim), who was

fourteen years old at the time, was with some friends outside his cousin’s apartment on

N. Alessandro Street in Hemet. Another apartment occupant was outside smoking when

a sport utility vehicle (SUV) passed the apartment complex; defendant kicked the rear

passenger door open and fired double aught buckshot from a shotgun. All nine shotgun

pellets from the cartridge hit the victim in his torso, shredding his liver, splitting his right

kidney, and severing his spinal cord. The victim died.


       1      All statutory references are to the Penal Code unless otherwise indicated.

                                               2
       One of the victim’s friends, in the apartment complex’s front yard, fired birdshot

from a shotgun at the SUV as it drove away. The BB-sized birdshot struck the SUV’s

passenger side rear taillight, side panel, and the inside of the rear passenger door.

Defendant was struck in his right arm and left hand.

       Defendant was arrested a few days later. After being read his rights under

Miranda v. Arizona (1966) 384 U.S. 436, defendant spoke with detectives. Defendant

admitted that he fired the shotgun that killed the victim. Defendant’s interview was

videotaped and played for the jury.

                                             III

                                        ANALYSIS

       A.     The Trial Court Properly Admitted Evidence

       Defendant contends that the trial court prejudicially erred in admitting evidence

that defendant’s brother yelled “Hemet Trece,” prior to and during the drive-by shooting,

and allowing a detective to testify that Hemet Trece was the name of a criminal street

gang. Even if the evidence were properly admitted, defendant contends that the

admission of this evidence was prejudicial because without this evidence, the jury could

have accepted defendant’s self-defense or imperfect self-defense theory.




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              1. Background

       In his interview with detectives, defendant said his fiancée Maria Lemus2 and his

brother Fernando Becerra had gone to Depot Deli and encountered the victim and his

friends. According to defendant, someone in the group tried to punch Becerra. When

Lemus tried to drive away in her SUV, they blocked her way, called her names, and

threw beer cans at the SUV.

       Shortly before the shooting, Lemus drove her SUV to the apartment complex

where the victim was staying. Becerra jumped out of the SUV shouting “Hemet Trece,”

obscenities, and other things. Becerra warned that he would be back before he got into

the SUV and it drove away.

       Defendant was home asleep when Lemus and Becerra came and got him. With

Lemus driving, they returned to the apartment complex. When they turned onto

Alessandro Street, defendant was sitting in the rear passenger seat. They passed a male

pedestrian, and defendant pointed a shotgun at him through the open SUV door and

yelled, “What’s up ese.” This caused the man to dive for cover. As the SUV continued

down the street with its lights off, defendant shot the victim.




       2      Lemus was a co-defendant charged with murder; she was driving the SUV
during the drive-by shooting that killed the victim. Prior to defendant’s trial, she pled
guilty to voluntary manslaughter.

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              2. There was no error

       The People contend that defendant has forfeited this argument by failing to object

to the evidence. We need not address this issue because defendant’s argument fails on

the merits; admitting the reference to Hemet Trece was proper.

       Relevant evidence is defined in Evidence Code section 210 as evidence “having

any tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action.” The test of relevance is whether the evidence tends

“logically, naturally, and by reasonable inference” to establish material facts such as

identity, intent or motive. (People v. Bivert (2011) 52 Cal.4th 96, 116-117.) Only

relevant evidence is admissible, and, except as otherwise provided by statute, all relevant

evidence is admissible. (Evid. Code, §§ 350, 351.) “[T]he trial court has broad

discretion to determine the relevance of evidence.” (People v. Cash (2002) 28 Cal.4th

703, 727.) This discretion extends to evidentiary rulings made pursuant to Evidence

Code section 352. (People v. Tully (2012) 54 Cal.4th 952, 1010.)

       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.” “Under Evidence

Code section 352, the trial court enjoys broad discretion in assessing whether the

probative value of particular evidence is outweighed by concerns of undue prejudice,

confusion or consumption of time. [Citation.] Where, as here, a discretionary power is

statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on

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appeal except on a showing that the court exercised its discretion in an arbitrary,

capricious or patently absurd manner that resulted in a manifest miscarriage of justice.

[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, italics

in original.) It is defendant’s burden on appeal to establish an abuse of discretion and

prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

       In this case, the evidence was relevant and highly probative. Defendant had

previously lived on Inez Street, which is close to the apartment complex on Alessandro

Street. Individuals who lived in the Alessandro apartment complex knew Lemus, Becerra

and defendant; one of the witnesses was the mother of Becerra’s child. After the

confrontation with Becerra and Lemus at the Depot Deli, Ruben A. and his friends must

have returned to the Alessandro Street apartment complex. It is reasonable to infer that

Becerra, angered by the Depot Deli incident, had Lemus drive him to the Alessandro

apartment complex. Becerra then yelled Hemet Trece and obscenities in front of the

apartments and warned that he would return.

       Lemus and Becerra returned to their home and woke up defendant. Instead of

brushing off the confrontation that occurred at Depot Deli, defendant worried about his

reputation and what would happen the next time he or Lemus was seen by these

individuals. He refused to allow the insult suffered by his fiancée and brother to go

unaddressed. Arming himself with a shotgun, defendant returned to the Alessandro

apartment complex with Lemus and Becerra.

       The fact that Becerra yelled Hemet Trece, which a detective explained was a

“commonly known criminal street gang” in Hemet, was relevant to help explain why

                                             6
defendant would react as he did upon learning of the Depot Deli incident, instead of

letting the incident go. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.)

Here, in the middle of the night, after being awakened and told about the Depot Deli

incident, defendant’s reaction was to get a shotgun, travel the short distance to the

Alessandro Street apartments, and commit a drive-by shooting; killing an unarmed 14-

year-old boy. The yelling of a criminal street gang’s name displayed a mindset that

slights or offenses, regardless of how minor, would not go unaddressed, but would be

avenged. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

       Moreover, this evidence also countered defendant’s claim that he fired the shotgun

to defend himself. The evidence showed that the SUV drove down the street with its

lights off. Defendant did not merely point the shotgun out the window to “scare” the

people in the apartments’ front yard. He kicked open the SUV door, allowing him to

fully wield the weapon. This evidence, coupled with the calling out of a criminal street

gang’s name, showed that defendant intended to kill. This was not a case of self-defense.

       Notwithstanding defendant’s argument to the contrary, as discussed above, the

evidence was relevant and highly probative to show defendant’s motive for committing

the drive-by shooting.

       The analysis does not end there. We now need to determine whether the probative

value was substantially outweighed by the probability that the admission necessitated

undue consumption of time or created a substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury. (Evid. Code, § 352.)



                                              7
       Here, the admission of the evidence did not necessitate undue consumption of

time. As discussed above, the evidence showed that defendant’s brother yelled “Hemet

Trece” prior to and during a drive-by shooting, and a brief explanation that this was the

name of a criminal street gang in Hemet gave context to these words. Even defendant

cannot argue that this necessitated an undue consumption of time during trial.

       Also, there was no substantial danger of undue prejudice, confusing the issues or

misleading the jury. Here, instead of confusing the issues or misleading the jury, the

evidence clarified the issue. Instead of allowing the jury to speculate as to what “Hemet

Trece” meant, the trial court properly permitted a brief explanation that it was the name

of a criminal street gang in Hemet. The trial court carefully limited the detective’s

testimony to just this explanation, nothing more. Additionally, as will be discussed in

more detail below, there was no undue prejudice as the gang reference was presented to

explain defendant’s mindset in returning to the apartments to avenge what he believed to

be an insult to his fiancée and brother at the Depot Deli. The prosecutor did not elaborate

on the gang reference as to color defendant as a gang-banger. Here, the evidence was

clear that defendant fired shots in a callous manner. There was no substantial danger of

undue prejudice.

       Even assuming that the trial court erred in admitting the evidence, the error was

harmless. The People contend that the Watson standard of review applies. (People v.

Watson (1956) 46 Cal.2d 818, 836.) Defendant contends that the federal standard applies

under Chapman v. California (1967) 386 U.S. 18, 23. However, most evidentiary errors

do not rise to the level of a constitutional violation because they do not affect the

                                              8
fundamental fairness of a trial. (People v. Boyette (2002) 29 Cal.4th 381, 428 [Watson

standard applies to prejudicial error analysis for state law errors, while beyond a

reasonable doubt standard of Chapman applies to federal constitutional errors].) Absent

fundamental unfairness, the state law error in admitting evidence is subject to the

traditional Watson test. (People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson,

supra, 46 Cal.2d at p. 836.) Here, the alleged error did not render defendant’s trial

fundamentally unfair. Hence, the Watson standard applies.

       Defendant contends that the admission of this evidence was prejudicial because

without this evidence, the jury could have accepted defendant’s self-defense or imperfect

self-defense theory. We disagree. The evidence regarding the reference to Hemet Trece

was brief and tangential. The evidence that defendant armed himself and went back to

the Alessandro apartments – after he, his fiancée and brother were all safe – does not

support his self-defense theory. As the prosecutor pointed out during closing argument –

as presented in the evidence during the trial – (1) defendant shot and killed the victim; (2)

defendant fired the gun from the SUV; (3) the victim did not have a gun; and (4)

defendant was at home, in a safe place, prior to the shooting – he was not being

threatened by any individual prior to making a decision to come to the Alessandro

apartments.

       We agree with the prosecutor’s analysis regarding self-defense: “I think that when

you talk about self-defense, you are talking about something that’s fundamental to who

we are, the ability to defend ourself [sic] against others, the ability to defend our family,

our friends, against lethal force being used against us. It’s fundamental to who we are as

                                              9
Americans. It’s fundamental to who we are as human beings, the idea that we can defend

ourself [sic]. Without that, we are really not free. [¶] That’s why I take exception to

self-defense being used in a situation where somebody rolls up to somebody else’s house,

kicks open the back door of their car, and points a loaded shotgun at somebody and then

claims I’m the victim. I’m defending myself. Because that’s now what the self-defense

law was created for, and the law recognizes that, and it has these principles that limits its

usefulness. One of those principles, the most important principle I think, is that you can’t

be what is called the initial aggressor and then claim self-defense. It doesn’t make

sense.”

       Nowhere during closing argument does the prosecutor mention “Hemet Trece” or

any gang affiliation. During his rebuttal, however, the prosecutor did mention that

defendant’s brother came by and yelled “Hemet Trece, we’ll be back[,]”{RT 291} when

mentioning that defendant and his cohorts chose to return to the apartments with a

shotgun after the initial incident at Depot Deli was over. The prosecutor did not mention

any gang involvement by defendant or elaborate on Hemet Trece.

       Although defendant tries to make this a “close” case where brief mention of

Hemet Trece affected the outcome of the case, we find nothing in the record to support

this argument. Here, because defendant has failed to establish a reasonable probability of

a more favorable outcome absent its admission, any alleged error in admitting this

evidence is harmless. (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled

on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People

v. Watson, supra, 46 Cal.2d at p. 836.)

                                             10
                                     IV

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               RICHLI
                                                        J.

We concur:


RAMIREZ
                    P. J.


CODRINGTON
                       J.




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