Filed 8/11/16 P. v. Reyes CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B266108

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA132870)
         v.

CRISTIAN REYES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael J. Shultz, Judge. Affirmed as modified.


         Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stacy
S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.


                                   _______________________________
       In April 2014, defendant Cristian Reyes shot and killed Samuel Guzman. A jury
found Reyes guilty of one count of first degree murder (Pen. Code, § 187, subd. (a)).1 On
appeal, Reyes contends: (1) the trial court erred in excluding evidence of pretrial
statements Reyes made to a jailhouse informant and in a recorded telephone conversation
with his girlfriend; both statements suggested he acted in self-defense; (2) he was
improperly impeached with evidence of his prior convictions; and (3) the trial court erred
in rejecting a jury instruction on voluntary intoxication. We find no reversible error,
direct the trial court to correct the abstract of judgment, and otherwise affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In the afternoon of April 8, 2014, Samuel Guzman entered the yard of the house
where Reyes lived with his parents. Guzman was wearing a hat associated with the South
Los gang.2 Reyes and some of his associates had placed graffiti related to the Junior
Mafia gang—a rival of South Los—on and around Reyes’s family’s house. Guzman
entered the yard and paced. Reyes’s mother saw Guzman as she was leaving the house.
Reyes saw Guzman from an upstairs window of the house. Reyes grabbed a gun, went
outside, and shot Guzman, hitting him with two bullets and killing him. Reyes then ran
away. Guzman was unarmed. He had methamphetamine in his blood at the time of the
shooting.
       Police quickly found Reyes and the gun. They also recovered Reyes’s wallet,
which contained methamphetamine and $300. Reyes’s jailhouse telephone calls to his
girlfriend, Jenipher Mendoza, were recorded. In one call, Mendoza angrily accused
Reyes of using drugs on the day of the shooting. Reyes denied this claim:
       “Mendoza: You’re a stupid. I bet you were—that’s the day you did that shit.
       “Reyes: I wasn’t—
       “Mendoza: Even you were, no, you weren’t. You were sober.
       “Reyes: I didn’t—I didn’t even touch it—
       “Mendoza: I know—don’t make—you make me mad. Stop fucking denying it.

1
       All further statutory references are to the Penal Code unless otherwise noted.
2
      Law enforcement had no information indicating Guzman was in fact a South Los
gang member.
                                              2
       “Reyes: I wasn’t, babe. I swear, like, I barely had got it, babe. I barely had got it
       that day, babe. I barely, barely had got it, babe.”

At trial, Mendoza admitted that during a different call she accused Reyes of being under
the influence when he committed the crime. Reyes insisted he was sober and “just wasn’t
thinking.” Mendoza testified she did not believe him. She opined he was using drugs at
the time because when he used drugs he was paranoid and afraid.
       In yet another recorded call, Reyes asked if Mendoza had told her brother, a Junior
Mafia gang member, about the murder. Reyes asked what the brother said in response to
the news. Reyes then told Mendoza he had previously talked to the brother, before the
shooting. Reyes said he had wanted to “do some stupid shit,” and he had “the urge.” He
told Mendoza he thought that was why “what happened happened . . . because I had the
urge . . . . And that was my only chance because you know—like how I did it, babe, it
was very gangster.”
       Reyes testified at trial. He admitting shooting Guzman. He testified that he used
marijuana and methamphetamine. When he was arrested in April 2014, he was not using
methamphetamine every day, but he was doing more methamphetamine than marijuana.
He knew about the Junior Mafia gang because Mendoza’s brothers were in the gang.
Reyes thought Mendoza’s brothers were “cool,” but he never joined the gang.
       According to Reyes, on the day of the shooting, he saw Guzman open the gate and
enter the yard of his family’s house. Reyes did not know Guzman. He thought Guzman
was wearing gang-affiliated attire. Guzman was pacing in the yard and holding his belt
or something under his shirt. Reyes grabbed a gun then went outside to see what
Guzman was doing in the yard. He got the gun because he saw that Guzman was “kinda
gang affiliated.” He intended to use the gun to scare Guzman away, and also: “If I
woulda went out there without it, I don’t know if he had something or not . . . .”
       Reyes asked Guzman what he was doing in the yard. Guzman responded, “This
Vario South Los,” then he walked toward Reyes, even though Reyes’s gun was visible.
Reyes explained how he was feeling at that moment: “Well, I’m feeling that he got
something on him ‘cause, I mean, if somebody showed me the gun that big, I mean, I

                                             3
would run away, you know, if I don’t have nothing.” Once Guzman got “really close,”
Reyes raised the gun and shot him, discharging the weapon four times. Reyes then ran
away because he was scared. Reyes testified he told Mendoza the shooting was
“gangster style” because he wanted her to see that he could “be protective over her.”
Defense counsel elicited testimony that Reyes had suffered a prior conviction for
possession of methamphetamine, and a 2009 conviction for unlawful intercourse with a
minor.
         On cross-examination, Reyes admitted he wanted to be a Junior Mafia gang
member and he wanted to be respected like Mendoza’s brothers who were gang
members. When asked how he was going to earn the respect of Mendoza’s brothers and
other men they knew, Reyes said: “I guess by doing something.” He agreed he felt he
needed to do something to prove he was equally tough. He agreed “one of the things”
would be shooting a South Los gang member. He admitted he wanted Mendoza’s
brothers to know what he had done for “bragging rights.” He admitted that when he
described having the “urge” to Mendoza, he meant the urge to “put in work” for the gang.
The cross-examination also included the following colloquy:
       “Q: But here you were in your house, and you just happened to have a loaded gun
that your boss had paid you with. And here came a chance because a South Los gang
member—at least you thought he was a South Los gang member—walked right onto
your front yard; isn’t that true?
       “A: Yeah.
       “Q: This was the perfect opportunity for you to prove yourself to show that you
had the urge to put in work, and you were willing to carry it out; isn’t that correct?
       “A: Yeah.
       “Q: Isn’t it also, true, sir that when you came out and you were looking down the
length of that—of your lot and could see him, you were in a position of relative safety.
You had the house there. You could run inside. Whereas, he was out in the open pacing
on the grass; isn’t that correct?
       “A: Yeah.
       “Q: And, so, then when you came up on him when you fired those shots, you had
the position of advantage. You had the chance, as you told [Mendoza] and [Mendoza’s
brother], to put in work and kill a South Los; isn’t that correct, sir?
       “A: Yes.
       “Q: Isn’t it true, Mr. Reyes, that you did not act in self defense? Isn’t it true, sir,
that you took a chance that had been given to you?

                                              4
       “A: I mean, I didn’t took [sic] a chance. It’s just, like I said earlier, you know, I
didn’t thought [sic] stuff like that was gonna happen, you know. Like, it just—I wanted
to scare this guy away. To be honest, I did, and it didn’t happen like that, you know. [¶]
And I kinda, like, feel bad about it, you know, that it happened that way. But, I mean, I
couldn’t—I mean, I was afraid of my protection, you know. I was afraid that he could
have shot me first before me shooting at him, you know.”

         The jury found Reyes guilty of first degree murder. It also found true allegations
that Reyes personally used a firearm within the meaning of section 12022.53, subdivision
(b), and that he personally and intentionally discharged a firearm, causing death, within
the meaning of section 12022.53, subdivisions (c) and (d). The jury found a gang
allegation not true. The trial court sentenced Reyes to a total prison term of 50 years to
life. Reyes timely appealed.
                                       DISCUSSION
I.       The Trial Court Did Not Err in Excluding Reyes’s Pretrial Statements
         On appeal, Reyes contends the trial court erred in excluding out-of-court
statements he made to a jailhouse informant and to Mendoza. We find no prejudicial
error.
         A. Statements to Informant
         While in jail, Reyes spoke to an informant who was placed in his cell. Early in
their conversation, after Reyes said the police had found the gun he used, police had a lot
of evidence on him, and he claimed he was from the Junior Mafia gang, he said, in
Spanish, “Can they hear us in here homie[?]” However, he continued talking. His
statements to the informant included: “[Guzman] ran up . . . with a strap . . . ”; and “I had
to do what I had to do fool, I just defended myself you know?”; “He was tryin’ to kill me,
dog. He was basically—he was tryin’ to kill me, dog, and I knew what I had to do. I
mean, hey”; and “I don’t know. He would have killed me, fool.”
         Before trial, defense counsel sought to introduce the conversation. The People
objected. Defense counsel argued the exculpatory statements in the recording were not
hearsay because he was not offering them to prove the truth of the matter asserted; for
example, he was not attempting to use the statements as evidence that Guzman had a gun.

                                              5
Counsel alternatively argued that if deemed hearsay, the statements were still admissible
under Evidence Code section 1250, an exception to the hearsay rule for statements of a
declarant’s then existing state of mind. The trial court excluded the conversation as
inadmissible hearsay.
       Hearsay is “evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.”
(Evid. Code, § 1200.) We review a trial court’s decision to admit or exclude a hearsay
statement for abuse of discretion. (People v. Jones (2013) 57 Cal.4th 899, 956.)
       “Evidence of a declarant’s statement is not hearsay if it relates facts other than
declarant’s state of mind and is offered to circumstantially prove the declarant’s state of
mind. (1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 1.5, p. 67.) However, a
statement is hearsay if it directly asserts the declarant’s state of mind and is offered to
prove the declarant’s state of mind. [Citation.] Such a hearsay statement is admissible
only if it falls within an exception to the hearsay rule. (Evid. Code, § 1200, subd. (b).)”
(People v. Frye (1985) 166 Cal.App.3d 941, 950-951.) Thus, for example, in People v.
Frye, the defendant in a burglary case told the police he entered the burglarized home to
look, not to steal. The Court of Appeal concluded the statement was properly excluded
because it was a direct statement of the defendant’s intent and was offered for the truth of
the matter asserted. (Id. at pp. 950-951; see also People v. Edwards (1991) 54 Cal.3d
787, 818-821 [defendant’s statements in a notebook and in an interview with police that
he had headaches and did not remember anything about the shooting were hearsay not
admissible under Evidence Code sections 1250 or 1251].)
       Here, the trial court reasonably concluded Reyes’s exculpatory statements in the
recorded conversation with the informant were hearsay. The statements at issue were
essentially Reyes telling the informant he shot Guzman in self-defense because he
thought Guzman had a gun and was going to shoot him. These were not statements
relating to facts other than Reyes’s state of mind, offered only as circumstantial evidence
of his state of mind at the time of the shooting. Instead, Reyes was telling the informant
about his state of mind at the time of the shooting; he wanted to introduce the statements

                                               6
at trial to prove his state of mind. As such, the statements were hearsay. 3 (See People v.
Douglas (1990) 50 Cal.3d 468, 514, overruled on other grounds in People v. Marshall
(1990) 50 Cal.3d 907, 933, fn. 4 [evidence of statement offered to prove truth of the
matter stated in the statement by implication is hearsay].)
       Moreover, even if the trial court erred in excluding some or all of the statements,
we would find the error harmless under any standard. Reyes testified at trial and
presented his self-defense claim. The jury also heard evidence explaining the gang
graffiti at Reyes’s house represented a gang that was a rival of the gang associated with
Guzman’s hat. Further, although Reyes told the informant he shot Guzman to defend
himself, his own testimony was that he saw Guzman from an upstairs window and
decided to grab a gun and confront Guzman, who, the evidence established, was
unarmed. Reyes told Mendoza in recorded conversations that the shooting happened
because he felt the urge to put in work for the Junior Mafia gang and the shooting was his
only chance to do so. After the shooting, Reyes ran away and tried to hide the gun.
On this evidence, we cannot conclude the trial court’s exclusion of Reyes’s conversation
with the informant affected the verdict.
       B. Statements to Mendoza
       Defendant also sought to admit a recorded conversation with Mendoza, which
included the following colloquy:
       “Mendoza: ‘And no lie. Deep inside I feel this anger towards you because you
fucked up my life. . . . Why would you do this to me?
       “Reyes: I’m sorry, baby. It’s because the nigga was gonna get me, babe. What
the fuck?’ ”



3
       As to Evidence Code sections 1251 and 1252, Reyes argues only that those
provisions were inapplicable because the excluded statements were not hearsay. We
have concluded the trial court did not abuse its discretion in finding the statements to be
hearsay.


                                             7
       Reyes argued the conversation should be admitted under Evidence Code 356
because it was one of several conversations between Mendoza and Reyes and should be
included in the interest of completeness. The trial court excluded the evidence,
concluding the conversation was distinct from those the People sought to introduce.
The challenged conversation occurred two days before the first recorded call the People
intended to offer at trial. The court further reasoned there was nothing unclear about the
conversations the People were introducing, and nothing in the challenged conversation
clarified the calls being offered in the People’s case. Reyes contends on appeal that this
ruling was in error. We disagree.
       “Evidence Code section 356 provides, in relevant part, that ‘[w]here part of
[a] . . . conversation . . . is given in evidence by one party, the whole on the same subject
may be inquired into by an adverse party; . . . when a . . . conversation . . . is given in
evidence, any other act, declaration, conversation, or writing which is necessary to make
it understood may also be given in evidence.’ ‘The purpose of Evidence Code section
356 is to avoid creating a misleading impression. [Citation.] It applies only to statements
that have some bearing upon, or connection with, the portion of the conversation
originally introduced. [Citation.] Statements pertaining to other matters may be
excluded.’ [Citations.]” (People v. Chism (2014) 58 Cal.4th 1266, 1324.) The trial
court’s ruling under the provision is reviewed for an abuse of discretion. (People v.
Parrish (2007) 152 Cal.App.4th 263, 274.)
       The trial court did not abuse its discretion in concluding the conversation Reyes
sought to introduce was not necessary to make his other conversations with Mendoza
understood. Each call was a separate, distinct conversation. The calls the People
proffered were independent of each other, and independent of the call Reyes sought to
introduce. Each call could be understood without reference to the other calls. (People v.
Farley (2009) 46 Cal.4th 1053, 1103.) “A court does not abuse its discretion when under
Evidence Code section 356 it refuses to admit statements from a conversation or
interrogation to explain statements made in a previous distinct and separate
conversation.” (People v. Johnson (2010) 183 Cal.App.4th 253, 287-288.) This is also

                                               8
not a case in which the defendant made exculpatory and inculpatory statements in a
single conversation. (Ibid.) Nothing about what the People proffered in the recorded
calls was misleading. (People v. Williams (2006) 40 Cal.4th 287, 319.) Evidence Code
section 356 did not provide a basis for the admission of the excluded recorded
conversation with Mendoza. (People v. Chism, supra, 58 Cal.4th at pp. 1324-1325.)
II.    No Reversible Error With Respect to Reyes’s Prior Convictions
       Before Reyes testified, the trial court ruled, over a defense objection, that Reyes
could be impeached with evidence he suffered a 2009 conviction for a violation of Penal
Code section 261.5, unlawful intercourse with a minor. On direct examination, defense
counsel elicited Reyes’s testimony that he suffered the conviction. Defense counsel also
elicited Reyes’s testimony that he had suffered a prior conviction for possession of
methamphetamine.
       A. The Unlawful Intercourse Conviction
       On appeal, Reyes contends the trial court erred in allowing impeachment with the
section 261.5 conviction. Reyes asserts the crime is not one of moral turpitude. Reyes
acknowledges that in People v. Fulcher (1987) 194 Cal.App.3d 749, the court interpreted
People v. Hernandez (1964) 61 Cal.2d 529, and section 261.5, as determining a section
261.5 conviction is a crime of moral turpitude. Reyes does not assert Fulcher was
wrongly decided, and concedes Hernandez found unlawful intercourse with a minor to be
a crime of moral turpitude. However, he essentially asserts that under contemporary
mores, the crime should no longer be considered one of moral turpitude. We disagree
and note we are also bound to follow the decision of our high court. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court properly concluded the
conviction was for a crime of moral turpitude.
       Reyes further argues that even if considered a crime of moral turpitude, the trial
court should have exercised its discretion under Evidence Code section 352 to bar
impeachment with the section 261.5 conviction. We find no abuse of discretion.




                                             9
       “ ‘ “[T]he admissibility of any past misconduct for impeachment is limited at the
outset by the relevance requirement of moral turpitude.” ’ [Citation.] Beyond this, the
‘ “trial courts have broad discretion to admit or exclude prior convictions for
impeachment purposes.” ’ [Citation.] ‘When determining whether to admit a prior
conviction for impeachment purposes, the court should consider, among other factors,
whether it reflects on the witness’s honesty or veracity, whether it is near or remote in
time, whether it is for the same or similar conduct as the charged offense, and what effect
its admission would have on the defendant’s decision to testify.’ [Citation.]” (People v.
Edwards (2013) 57 Cal.4th 658, 722.)
       As explained above, unlawful intercourse with a minor involves moral turpitude.
“[A]ny felony conviction evincing moral turpitude, as here, ‘has some “tendency in
reason” (Evid. Code, § 210) to shake one’s confidence in [a witness’s] honesty.’
[Citation.]” (People v. Campbell (1994) 23 Cal.App.4th 1488, 1496.) The conviction
was five years old—not excessively remote in time. Defendant concedes this factor was
“at best neutral.” Reyes also concedes the prior conviction was not similar to the charged
offense. Moreover, Reyes testified in spite of his awareness that he could be impeached
with the conviction. The trial court did not abuse its discretion in allowing impeachment
with the conviction.
       B.     The Possession Conviction
       Reyes also argues his counsel was ineffective for failing to object to impeachment
with the conviction for possession of methamphetamine. This argument misconstrues the
record; the conviction came in because defense counsel elicited testimony from Reyes
about it, on direct examination. There was no discussion between the court and the
parties about impeachment with a drug possession prior conviction.4




4
        In fact, the trial court indicated that because Reyes’s other prior convictions were
all for “straight possession,” the section 261.5 conviction was the only prior conviction
the court was aware of that would be available for impeachment.
                                             10
       We thus limit our review to the contention that defense counsel was ineffective for
introducing evidence of the conviction. On the record before us, we reject the argument.
       “ ‘ “ ‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.]’ ” ’ [Citations.]” (People v. Johnson (2016) 62 Cal.4th 600, 653.)
       As Reyes contends, the methamphetamine possession conviction was not a crime
of moral turpitude and would not have been available for impeachment. (People v.
Castro (1985) 38 Cal.3d 301, 317.) Still, “we cannot say ‘ “ ‘there simply could be no
satisfactory explanation’ ” ’ ” for defense counsel’s decision to elicit evidence of Reyes’s
prior drug possession conviction. (People v. Johnson, supra, 62 Cal.4th at p. 654.)
Indeed, one tactical reason may have been to further inform the jury of Reyes’s drug use
and to bolster the theory that Reyes was under the influence when he shot Guzman. “In
the present case, ‘[t]he claim fails in the context of this direct appeal because the record
does not reveal whether counsel had a plausible tactical reason for not requesting the
instruction’ [citation], and defendant fails to show that there could be no conceivable
reason for trial counsel” to elicit evidence of the drug possession prior conviction.
(People v. Nguyen (2015) 61 Cal.4th 1015, 1051-1052.)
III.   The Trial Court Did Not Err in Rejecting an Instruction on Voluntary
       Intoxication
       Reyes argues the trial court erred in denying his request for an instruction on
voluntary intoxication. We find no error.
       “ ‘[A] defendant is entitled to [a voluntary intoxication] instruction only when
there is substantial evidence of the defendant’s voluntary intoxication and the
intoxication affected the defendant’s “actual formation of specific intent.” ’ [Citations.]”
(People v. Verdugo (2010) 50 Cal.4th 263, 295.)




                                             11
       The trial court properly concluded there was no substantial evidence entitling
Reyes to a voluntary intoxication instruction. There was scant evidence Reyes was under
the influence at the time of the shooting. In his own testimony, Reyes did not indicate
that he was under the influence of drugs at the time of the shooting, and in his recorded
jailhouse calls with Mendoza he insisted he was sober. Indeed, the only relevant
evidence was that methamphetamine was found in his wallet, he used the drug in general,
and Mendoza’s speculation that Reyes was “drugged up,” because he tended to act
paranoid when under the influence. Even if this evidence was sufficient to show Reyes
was intoxicated at the time of the shooting, there was no evidence that the voluntary
intoxication affected his ability to formulate intent, premeditate, or deliberate. (People v.
Williams (1997) 16 Cal.4th 635, 677-678; People v. Marshall (1996) 13 Cal.4th 799,
847-848.) The trial court properly declined to instruct on voluntary intoxication for lack
of substantial evidence to support the instruction. (People v. Memro (1995) 11 Cal.4th
786, 868 [“A party is not entitled to an instruction on a theory for which there is no
supporting evidence.”].)
IV.    The Abstract of Judgment Must Be Corrected
       The abstract of judgment must be corrected to eliminate the notation indicating the
trial court stayed a section 186.22 enhancement. As Reyes points out, although the
enhancement was alleged, the jury found the allegation not true.
                                      DISPOSITION
       The trial court is directed to prepare a corrected abstract of judgment deleting the
reference to a Penal Code section 186.22, subdivision (b)(1)(C) enhancement, and to
forward a copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.


                                                         BIGELOW, P.J.
We concur:


                     FLIER, J.                    GRIMES, J.

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