Filed 10/15/13 P. v. Sanchez CA2/24
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B241795
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA079277)
v.
GARY ANTHONY SANCHEZ, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Dorothy L. Shubin, Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan
Pithey and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________
INTRODUCTION
Gary Anthony Sanchez, Jr., appeals from a judgment following his
convictions for first degree murder and two assaults with a semiautomatic firearm.
1
He contends the trial court erred (1) when it denied his Wheeler motions, (2) when
2
it determined that he had impliedly waived his Miranda rights, and (3) when it
admitted evidence that he previously owned a .380-caliber handgun. He also
contends that he did not receive a fair trial because of the cumulative effect of the
trial court’s errors. Finally, he contends the evidence was insufficient to sustain
two of his convictions. Finding no reversible error, we affirm.
PROCEDURAL BACKGROUND
3
In an amended information, appellant and four codefendants were charged
4
with the murder of Jason Gentile (Pen. Code, § 187, subd. (a); count 1), the
willful, deliberate and premeditated attempted murder of Cassie Yeats
(§§ 664/187, subd. (a); count 2), and the assault of Yeats with a semiautomatic
firearm (§ 245, subd. (b); count 7). The information further alleged that during the
commission of counts 1 and 2, a principal to the offense, specifically appellant,
1
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3
The four codefendants were Daniel Angelo Gomez, also known as (aka)
“Duke,” Marcos Rodriguez Garcia, aka “Tank,” Walter Jason Vargas, aka “Ghost,”
or Jason Vargas, and Michael Anthony Vargas, aka “Mikey.” Only Gomez and
appellant proceeded to trial. According to the prosecutor, Jason and Michael
Vargas fled to Costa Rica shortly after the homicide and police were unable to
locate them. The case against Garcia was severed from the instant case. At the
end of the presentation of evidence but before submission to the jury, Gomez
accepted a plea deal.
4
All further statutory citations are to the Penal Code, unless otherwise stated.
2
personally used and intentionally discharged a firearm causing great bodily injury
or death to the victims (§ 12022.53, subds. (b), (c), (d) & (e)(1)). As to count 7, it
was alleged that appellant personally used a firearm (§ 12022.5), and that he and
three of his codefendants personally inflicted great bodily injury upon the victim.
(§ 12022.7, subd. (a).) In addition, appellant was charged with the assault of
Ashley Booth with a semiautomatic firearm (§ 245, subd. (b); count 3), and the
attempted willful, deliberate and premeditated murders of Michael R., Joseph F.
and Jason M. (§§ 664/187, subd. (a); counts 4, 5, & 6). Finally, it was alleged that
all seven offenses were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
After appellant pled not guilty and denied all the allegations, the trial court
granted the prosecution’s motion to dismiss count 2. During voir dire, the trial
court denied several Wheeler motions. The court also granted in part and denied in
part appellant’s motion to suppress his pretrial statement, which he contended was
obtained in violation of his Miranda rights.
The jury found appellant guilty of first degree murder (count 1) and assault
with a semiautomatic firearm (counts 3 and 7), and determined that the special
allegations attached to those counts were true. The jury found appellant not guilty
5
of counts 4, 5 and 6.
The trial court sentenced appellant to state prison for 59 years and 4 months
to life, with a 15-year parole eligibility minimum. Appellant timely filed a notice
of appeal from the judgment.
5
These counts charged appellant with shooting at the three victims with a
.380-caliber handgun. Because appellant was acquitted of these counts, we omit
further details of this shooting.
3
FACTUAL BACKGROUND
Fred Zamora and Arturo Ayon were next-door neighbors in Monrovia. Late
in the afternoon of December 15, 2009, Zamora hosted a party to celebrate Ayon’s
birthday. Initially, the group consisted of Ayon and his girlfriend, Megan
McIntire, and Zamora and his roommate, Myrna, and her 10-year-old son. Early
that evening, a large number of people arrived in a van. The group included
appellant and his codefendants. McIntire had met appellant several days before
and had seen him several times. An hour later, Ashley Booth and Desiree
Delgado, McIntire’s acquaintances, also showed up. They parked in the driveway
behind the van, and McIntire took them inside Zamora’s house.
About 15 minutes later, McIntire exited Zamora’s house and headed to
Ayon’s to get a jacket. She saw a group of men that included appellant standing
between the two houses. Some members of the group, including appellant, Jason,
Mikey and Garcia, walked to a nearby street intersection. Gomez followed, but
stopped halfway down the street and came back toward the house. McIntire
thought the men were leaving. She went into Ayon’s house, got her jacket, and
went back outside.
A few minutes after McIntire left to get her jacket, Booth went outside to
have a cigarette. She saw appellant and his codefendants outside. Delgado
followed Booth outside, and the women talked to Gomez. The other men walked
to a nearby area to smoke marijuana.
Meanwhile, Jason Gentile and his girlfriend, Cassie Yeats, were walking
home from a nearby gym. When Gentile and Yeats reached the intersection near
Zamora’s house, a group of men quickly approached them. Yeats noticed that one
of the men, whom she later identified as appellant, had a gun. She stopped
moving, and both she and Gentile backed away from the men. While Gentile and
4
the gunman spoke to one another, the other men spread out in a half circle around
them. Appellant claimed membership in a Monrovia gang, and asked Gentile
where he was from. Gentile responded that he was from Anaheim. Another
person said something like, “Pop his ass,” “Just bust him,” or “Just hit him.” In
response, someone said, “I don’t play with fists. I play with guns.” Seconds later,
appellant pointed the gun at Gentile. Someone said, “Finish it off. Get it done.”
Appellant fired. Gentile grabbed his chest, looked back at Yeats, and then fell to
the ground. Appellant fired about five more shots at Gentile. One of the bullets
struck Yeats in the foot. Appellant and the rest of the group ran back toward
Zamora’s house. Yeats called 911 from her mobile phone.
McIntire observed the incident and identified appellant as the shooter.
Although it was dark outside, a nearby streetlight provided illumination. McIntire
had a clear view and was 100 percent certain that appellant was the shooter.
Booth and Delgado heard the gunshots but did not see the shooting. They
took Booth’s son and ran to Myrna’s bedroom to hide, but Myrna yelled at them to
leave. They went outside to their car, but Booth could not find the car keys.
Appellant and his codefendants ran up the driveway to their van. Booth dumped
the contents of her purse onto the grass to find the car keys. Someone started
yelling at her, “Move your fucking car, bitch.” The same person repeatedly yelled,
“Bitch, move your car.” Another person told her to “Hurry up and find your keys.”
Booth was on her knees on the grass, desperately trying to find the car keys. Booth
looked up and saw appellant, who was five to six feet away, pointing a gun at her.
Booth finally found her keys and moved her car into the street. Appellant, Jason
and Mikey left in the van. Gomez went inside the house, and Garcia started
walking away from the house.
5
Gentile died at the scene. He suffered multiple gunshot wounds.
Underneath his right arm, a coroner’s investigator recovered a live unfired .380-
caliber round. A firearms examiner analyzed the seven casings, two expended
bullets and live unfired round recovered from the shooting. He determined that
they had been fired from the same .380-caliber semiautomatic weapon. Further,
the live unfired round had been cycled through the same weapon; it likely misfired
and was manually ejected by the shooter.
Robert Martindale, a sergeant with the Los Angeles County Sheriff’s
Department, was assigned to investigate the shooting. Evidence found near
Zamora’s driveway -- women’s cosmetics and a piece of paper -- led him to Booth.
When he interviewed Booth, she told him what she knew of the incident and
suggested that he talk to McIntire. Sergeant Martindale subsequently interviewed
McIntire. Although McIntire was initially deceptive, she eventually acknowledged
that she saw appellant commit the shooting.
After interviewing McIntire, Sergeant Martindale returned to the scene of
the shooting. He determined that it was 175 feet from where Gentile’s body was
found to where McIntire had been standing. Sergeant Martindale also determined
that McIntire’s vision would not have been obstructed.
When Sergeant Martindale interviewed Yeats, she told him that the
assailants were all Hispanic males around the same height. The shooter had a
medium build and was 5’7” to 5’8” tall. Yeats could not identify appellant or any
of the codefendants from photographs shown to her. At the preliminary hearing,
Yeats stated that she believed that appellant was present at the shooting, but she
could not remember whether he was the shooter. At trial, she testified that she
believed appellant was the shooter. Yeats explained that over the last few days,
6
she had “done nothing but remember” the shooting, and she recalled appellant as
the shooter.
Sergeant Martindale and his partner, Sergeant MacArthur, interviewed
appellant after his arrest. During the interview, Sergeant MacArthur told appellant,
“We know that you were there with five guys. You surrounded this white boy and
his girlfriend on the sidewalk. And you pulled out a fuckin’ .380 and you lit him
up like a Christmas tree.” Appellant denied being involved. After appellant
admitted he had purchased a .380-caliber weapon in 2005, the sergeant stated that
it was “going to look bad” because appellant liked .380-caliber firearms.
Monrovia Police Officer Yolanda Gutierrez testified as the prosecution’s
gang expert. She knew appellant, and opined that he was an active member of
Monrovia Nuevo Varrio (MNV), a criminal street gang. She stated that Jason
Vargas was a documented member of MNV. Officer Gutierrez also opined that
Gomez was a member of MNV, because he associated with MNV gang members
and had several MNV tattoos. When presented with a hypothetical based on the
facts of this case, Officer Gutierrez opined that the shooting and assaults were
committed for the benefit of MNV. The shooting and assault benefited MNV by
instilling fear in the community. Fear enhanced the gang’s reputation and enabled
it to commit future crimes without interference.
Appellant sought to create reasonable doubt about Yeats’s identification of
him as the shooter. Vivian Fang, a close family friend, estimated that on
December 15, 2009, appellant was over six feet tall and weighed more than 300
pounds.
DISCUSSION
Appellant contends the judgment of conviction should be reversed because:
(1) he was denied his right to a jury drawn from a representative cross-section of
7
the community, as the trial court erred in denying two Wheeler motions; (2) he was
denied his right to remain silent during custodial interrogation, as the court erred in
determining that he impliedly waived his Miranda rights; (3) the court erred in
admitting evidence that he previously owned a .380-caliber handgun, as that
evidence was inadmissible character evidence; and (4) the cumulative effect of the
trial court’s errors deprived him his right to a fair trial. Appellant also contends
that the evidence was insufficient to support two of his convictions.
A. Wheeler Motions
Appellant contends the trial court erred in denying two Wheeler motions,
because, he argues, the prosecutor improperly used peremptory challenges to
excuse five Hispanic prospective jurors: Nos. 5166, 3463, 6279, 9803, and 3040.
The record fails to support appellant’s argument.
1. Relevant Background
During jury selection, the prosecutor used her second peremptory challenge
against prospective Juror No. 5166, a school counselor whose husband had some
law enforcement training. Her third peremptory was against prospective Juror No.
3463, a woman who worked as a courtroom assistant. One of prospective Juror
No. 3463’s children was a clerk at the same courthouse, her husband was a retired
deputy sheriff, and two of her children were peace officers.
After the defense exercised its third peremptory challenge, the prosecutor
accepted the panel. Three Hispanics were on the panel. The defense used its
fourth peremptory, and the prosecutor then excused prospective Juror No. 6279, a
male college student. At that point, the defense made a Wheeler motion, asserting
that the last three prospective jurors dismissed by the prosecutor all appeared to be
Hispanic.
8
The court found a prima facie case had been made and asked the prosecutor
to state her reasons for excusing the prospective jurors. With respect to Juror No.
5166, the school counselor, the prosecutor explained, “I usually don’t like to keep
counselors, especially school counselors, on the jury. They’re usually overly
sympathetic towards defendants.” In excusing prospective Juror No. 3463, the
courtroom assistant, the prosecutor referred to her answers in voir dire and stated,
“She’s too much on the inside . . . being a courtroom assistant. Usually, I don’t
like people in the legal profession, especially people who work inside the
courtroom.” Finally, the prosecutor explained that she excused prospective Juror
No. 6279, the student, because she did not think he would be a good juror if he was
worried about missing class. She thought she was doing him a favor by using a
peremptory to release him.
Defense counsel accepted the prosecutor’s reason for excusing prospective
Juror No. 5166, the school counselor. However, they asserted that prospective
Juror No. 3463’s connection to law enforcement made her an acceptable
prosecution juror, and that prospective Juror No. 6279 seemed eager to serve on a
6
jury.
The trial court denied the motion. It found that the defense had conceded the
legitimacy of the prosecutor’s explanation for excusing Juror No. 5166. As to
prospective Juror No. 3463, the court stated that the prosecutor had articulated
reasons that pertained to the juror’s occupation and her particular responses to
questions. Finally, as to prospective Juror No. 6279, the court found it
6
Appellant’s opening brief mistakenly asserts that the defense accepted the
prosecutor’s explanation for excusing prospective Juror No. 6279. The reply brief
asserts for the first time that the explanation was pretextual. Although we need not
consider arguments made for the first time in a reply brief, we exercise our
discretion to do so here.
9
understandable that the prosecutor did not want someone on the jury whose mind
would be on other things. The court viewed the juror as willing to serve, but not
eager.
The parties continued to exercise their peremptory challenges. After the
defense’s seventh peremptory challenge, the prosecutor accepted the panel. There
were still Hispanics on the panel. The defense continued to use their peremptory
challenges, and the prosecutor excused two prospective jurors. After defense
counsel used their 10th peremptory, the prosecutor used her ninth to excuse
prospective Juror No. 3040. This prospective juror admitted that he was not a
good listener and that he had “been known to forget quite a couple of things here
and there.” Serving on the jury, he said, would be “a challenge.” In addition, he
had a grandfather who had been arrested for assaulting a police officer, and an
uncle serving time for murder in Mexico.
The prosecutor used her 10th peremptory to excuse prospective Juror No.
9803. This prospective juror had a brother and uncles who had been arrested, and
his girlfriend had pled guilty to witness tampering. Further, while growing up, he
had been harassed by police officers in gang units.
The defense made another Wheeler motion based on the prosecutor’s
dismissal of prospective Juror Nos. 3040 and 9803. The court indicated that a
prima facie showing had been made. The prosecutor objected, pointing out that
she had twice accepted the panel with Hispanic members. She then explained that
she excused prospective Juror No. 9803 because his brother and uncles had been
arrested, his girlfriend had been arrested for witness intimidation, and he had been
harassed by gang officers. She did not “want a juror who has been harassed in the
past by officers in the gang unit.” As for prospective Juror No. 3040, the
prosecutor noted that the juror had indicated he would have a difficult time
10
following the witnesses’ testimony. Further, he seemed very young, and lacked the
maturity to be a juror. Defense counsel did not argue. The court denied the
Wheeler motion, finding the prosecutor credible and her reasons race neutral.
2. Analysis
“The purpose of peremptory challenges is to allow a party to exclude
prospective jurors who[m] the party believes may be consciously or unconsciously
biased against him or her. [Citation.] However, the use of peremptory challenges
to remove prospective jurors from the panel solely on the basis of group bias
violates the right of the defendant to a jury drawn from a representative cross-
section of the community. [Citations.]” (People v. Jackson (1992) 10 Cal.App.4th
13, 17-18, italics & fn. omitted.) “[A] peremptory challenge may be predicated on
a broad spectrum of evidence suggestive of juror partiality[,] . . . rang[ing] from
the obviously serious to the apparently trivial, from the virtually certain to the
highly speculative.” (Wheeler, supra, 22 Cal.3d at p. 275; accord People v. King
(1987) 195 Cal.App.3d 923, 933.)
Trial courts engage in a three-step process to resolve claims that a
prosecutor used peremptory challenges to strike prospective jurors on the basis of
group bias -- that is, bias against “‘members of an identifiable group distinguished
on racial, religious, ethnic, or similar grounds.’” (People v. Avila (2006)
38 Cal.4th 491, 541.) “First, the defendant must make out a prima facie case ‘by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’ [Citation.] Second, once the defendant has made out a
prima facie case, the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
11
discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168,
fn. omitted.) The appellate court reviews the trial court’s ruling on the question of
purposeful racial discrimination for substantial evidence, presumes that the
prosecutor used peremptory challenges in a constitutional manner, and gives
deference to the trial court’s conclusions, as long as the “court makes ‘a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered.’”
(People v. Avila, supra, 38 Cal.4th at p. 541, quoting People v. Burgener (2003)
29 Cal.4th 833, 864.)
After examining the record, we conclude that the trial court made “a sincere
and reasoned effort” to evaluate the prosecutor’s proffered reasons for excusing the
five Hispanic prospective jurors. Here, “[t]he prosecutor’s stated reasons for
exercising each peremptory challenge [were] neither contradicted by the record nor
inherently implausible.” (People v. Ward (2005) 36 Cal.4th 186, 205.) As to
prospective Juror No. 5166, the school counselor, defense counsel agreed that the
reason was legitimate and on appeal, appellant does not argue otherwise.
As to prospective Juror No. 6279, the student, the prosecutor’s stated reason
-- her concern that he would worry about missing school -- was race neutral. (See
People v. Reynoso (2003) 31 Cal.4th 903, 925-926 (Reynoso) [excusal of distracted
prospective juror is race-neutral].) Similarly, the prosecutor’s proffered reason to
excuse prospective Juror No. 3463 -- that she was a courtroom assistant -- was
race neutral. (See, e.g., People v. Mai (2013) 57 Cal.4th 986, 1052-1053
[prosecutor could excuse prospective juror who was a 911 operator for police
department because of her demeanor and voir dire response]; People v. Clark
(2011) 52 Cal.4th 856, 1013 [prosecutor could excuse prospective juror, a legal
professional, because other jurors may ascribe to her special legal expertise].)
12
As to prospective Juror No. 9803, the prosecutor explained that she excused
him because he had been harassed by police when he was younger, had family
members who had been arrested, and had a girlfriend who had pled guilty to
witness tampering. These were race-neutral grounds to exclude the prospective
juror. (See, e.g., People v. Douglas (1995) 36 Cal.App.4th 1681, 1690 [“[U]se of
peremptory challenges to exclude prospective jurors whose relative and/or family
members have had negative experiences with the criminal justice system is not
unconstitutional.”].)
As to prospective Juror No. 3040, the prosecutor stated she excused him
because he admitted he was not a good listener, seemed very young, and in the
prosecutor’s opinion, lacked maturity. These were race-neutral reasons. (See, e.g.,
People v. Sims (1993) 5 Cal.4th 405, 429-430 [prosecutor could exclude
prospective juror who was “a youthful college student with insufficient maturity,”
and another prospective juror who was “very young and appeared immature”].) In
addition, the record shows that the prospective juror had an uncle serving time for
murder. (See, e.g., People v. Dunn (1995) 40 Cal.App.4th 1039, 1052-1053
[prosecutor properly challenged juror whose uncle had been convicted of murder].)
The trial court found the prosecutor’s proffered reasons to be race-neutral
and credible. Nothing suggests that the proffered reasons were pretextual. The
prosecutor repeatedly accepted panels with multiple Hispanic jurors, and offered
rational, credible explanations for the exercise of her peremptory challenges.
(Reynoso, supra, 31 Cal.4th at p. 926 [fact that prosecutor accepted a jury with two
Hispanic members suggests that prosecutor did not have an unconstitutional
discriminatory intent against Hispanics].) In short, we discern no error in the trial
court’s denial of appellant’s Wheeler motions.
13
B. Implied Waiver of Miranda Rights
Appellant next contends the trial court erred in denying his motion to
suppress the entirety of a nine-minute tape-recording of a police interview. He
contends all of his statements in the interview were obtained in violation of
Miranda. As explained below, we disagree.
1. Relevant Background
During their investigation into the shootings, Sergeants Martindale and
MacArthur interviewed appellant. In the interview, which was played for the
court, appellant was advised of his Miranda rights as follows:
“MacArthur: All righty. Well, obviously you’re in jail so -- so we got to
read you your rights.
“[Appellant]: Yeah.
“MacArthur: We got a card.
....
“Martindale: I’ll do that and then we can -- we can discuss what’s going on.
And --
“MacArthur: We’ll -- We’ll tell you --
“Martindale: -- we’ll explain it and then we can talk back and forth. Okay.
“[Appellant]: Okay.
“Martindale: All right. Um, first of all, not to be, ah, rude or anything but
you understand English?
“[Appellant]: Yeah.
“Martindale: Okay. I ask that because some people do and then they have
difficulty, you understand?
“[Appellant]: Yeah.
“Martindale: Okay. Um, you have the right to remain silent.
14
“[Appellant]: Uh-huh.
“Martindale: And anything you say may be used against you in court. You
have the right to an attorney during questioning. If you cannot afford an
attorney, one will be appointed for you before any questioning. Okay?
“[Appellant]: Uh-uh.
“Martindale: All right. Any questions, anything?
“[Appellant]: I just --
“Martindale: Okay.
“[Appellant]: -- don’t know what it’s about.
“Martindale: Okay. Okay.”
Sergeant Martindale then explained that appellant had been identified as being
involved in a murder in Monrovia. After some further discussion, appellant said,
“I’d just rather speak to an attorney.” The interview continued for a few minutes
and then terminated.
At the suppression hearing, Sergeant Martindale admitted never asking
appellant whether he understood his rights or whether he wished to waive his right
to counsel before discussing the murder. Because Sergeant Martindale failed to do
so, appellant argued he never expressly waived his Miranda rights. Appellant
further argued that his responses when read his rights -- “uh-huh” -- did not
constitute an implied waiver. Finally, he asserted that even if he initially waived
his rights, he subsequently invoked them by stating he would rather speak to an
attorney.
The trial court determined that the totality of circumstances established that
appellant understood and impliedly waived his Miranda rights, as he started
talking and answering questions immediately after the advisement of rights.
However, the court agreed that appellant had invoked his right to counsel by
15
stating he would rather speak to an attorney. Accordingly, the court excluded all
statements made after that point.
2. Analysis
In reviewing a trial court’s ruling on a motion to suppress, an appellate court
applies two different standards of review. The reviewing court defers to the trial
court’s findings of fact, both express and implied, if supported by substantial
evidence. The reviewing court then independently applies the pertinent legal
principles to those facts to determine whether the motion should have been
granted. (People v. Carter (2005) 36 Cal.4th 1114, 1140.)
Under Miranda, statements obtained during custodial interrogation may be
used at trial only if the defendant has been given certain advisements. (Miranda,
supra, 384 U.S. at p. 444.) Once a suspect receives the advisements, he “is free to
exercise his own volition in deciding whether or not to make a statement to the
authorities.” (Oregon v. Elstad (1985) 470 U.S. 298, 308.) A waiver of the right
to remain silent may be express or implied from the totality of circumstances,
including the suspect’s actions and words. (Berghuis v. Thompkins (2010)
560 U.S. 370 [130 S.Ct. 2250, 2261-2264] (Berghuis); People v. Whitson (1998)
17 Cal.4th 229, 244-250.)
Here, Miranda advisements were given, and the totality of the circumstances
shows that appellant understood his rights. Appellant stated that he understood
English, and he responded affirmatively to the various advisements. Moreover,
nothing suggests that appellant was coerced into making his statements. The entire
interview lasted less than 10 minutes, and the officers used no “physical or
psychological pressure to elicit statements from [him].” (People v. Whitson, supra,
17 Cal.4th at p. 249.) Rather, as noted by the trial court, appellant promptly started
speaking after being advised of his Miranda rights. “Where the prosecution shows
16
that a Miranda warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the right to remain
silent.” (Berghuis, supra, 130 S.Ct. at p. 2262.) Accordingly, the trial court
properly determined that appellant had impliedly waived his right to remain silent
until he subsequently invoked his right to counsel.
C. Evidence of Prior Gun Ownership
Appellant next contends the trial court erred in admitting evidence of his
prior ownership of a handgun that was not used in the shooting. We disagree.
1. Relevant Background
During the tape-recorded police interview, the following exchange regarding
appellant’s prior ownership of a .380-caliber handgun occurred:
“MacArthur: And -- And everybody says it’s you. You bought a .380 in
2005, right?
“(Crosstalk)
“[Appellant]: ___________
“MacArthur: Brand new.
“[Appellant]: Yeah.
“MacArthur: In El Monte, somebody supposedly took it away.
“[Appellant]: Yeah.
“MacArthur: All right. Um, where’s that gun now, do you know?
“[Appellant]: In El Monte ______________
“MacArthur: Okay. So you like .380s, so that’s going to look bad.
“[Appellant]: Oh --
“MacArthur: All right.
“[Appellant]: -- you guys are trying to pin this shit on me.
“MacArthur: No, we’re not trying to pin it on -- we have pinned it on you.
17
At the suppression hearing, appellant argued that the foregoing was
irrelevant and more prejudicial than probative under Evidence Code section 352, as
the handgun was not in his possession at the time of the shooting. He also
contended the evidence was “a specific instance of conduct which is inadmissible”
under Evidence Code section 1101. The trial court found the evidence that
appellant previously owned a .380 relevant and probative, as there had been “a lot
of testimony” that the murder weapon was a .380, and his prior purchase tended to
show his preference for that particular caliber of handgun. The court disagreed
that the evidence was inadmissible under Evidence Code section 1101, and
suggested that counsel formulate a stipulation to clarify that the weapon appellant
owned was not the murder weapon.
The recording of appellant’s statements was later played for the jury.
Sergeant Martindale testified that the .380 handgun appellant acknowledged
having previously owned was in the custody of the El Monte Police Department at
the time of the shooting.
2. Analysis
Appellant contends that the evidence of his prior gun ownership was
irrelevant and unduly prejudicial under Evidence Code section 352, and that it was
inadmissible character evidence under Evidence Code section 1101. We disagree.
First, the evidence was more probative than prejudicial, as it showed that
appellant had a preference for the same type of handgun that was used to commit
the charged offenses. The evidence was not unduly prejudicial, as the jury was
informed that appellant’s previously owned handgun was not the weapon used to
commit the charged offenses. Indeed, the jury knew appellant did not have
possession of the handgun at the time of the shooting.
18
Second, the evidence was not inadmissible character evidence under
Evidence Code section 1101, subdivision (a). Prior gun ownership does not prove
that the gun owner has a propensity to commit assault or murder. Nor was the
evidence inadmissible under Evidence Code section 1101, subdivision (b), which
prohibits evidence of prior misconduct to show disposition. The evidence admitted
was that appellant previously bought a .380 handgun that had been taken away by
someone in El Monte, and later placed with the El Monte Police Department. No
evidence was admitted suggesting that appellant illegally possessed the handgun or
was guilty of some other misconduct related to his prior gun ownership.
Accordingly, the evidence of appellant’s prior gun ownership falls outside the
purview of Evidence Code section 1101. In short, the trial court did not err in
denying appellant’s motion to suppress evidence that he previously owned a .380
handgun.
Moreover, even had the trial court erred, we would find any error harmless
under People v. Watson (1956) 46 Cal.2d 818. Although all of the charged
offenses were alleged to have been committed with a .380-caliber handgun, the
jury acquitted appellant of three counts. As to his three convictions, McIntire and
Yeats identified appellant as the person who shot and killed Gentile. Yeats also
testified that she was injured by appellant’s shots. Booth identified him as the
person who, seconds after Gentile’s murder, pointed a gun at her and called her
“bitch.” On this record, it was not reasonably probable that a result more favorable
to defendant would have been reached, absent the admission of evidence that
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appellant previously owned a .380-caliber handgun. (Id. at p. 837.)
7
Inexplicably, appellant’s counsel suggests that by arguing that any error was
harmless, the People have “implicitly conced[ed]” the merits of appellant’s
arguments. The People’s argument that if any error occurred, it was harmless, is
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D. Cumulative Error
Appellant contends that cumulative error requires the reversal of his
convictions. As we have determined there were no errors, there is no cumulative
error. (People v. Jones (2013) 57 Cal.4th 899, 981.)
E. Sufficiency of the Evidence
Appellant concedes there was sufficient evidence to sustain his conviction
for assaulting Booth. He contends, however, that the evidence was insufficient to
support his convictions for the first degree murder of Gentile and the assault of
Yeats. According to appellant, his identification as the shooter by Yeats and
McIntire was not credible or reliable.
“In determining whether the evidence is sufficient to support a
conviction . . . , ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’ [Citations.] Under
this standard, ‘an appellate court in a criminal case . . . does not ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’ [Citation.] Rather, the reviewing court ‘must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of solid
value -- such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.) “In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution
of conflicts and inconsistencies in the testimony is the exclusive province of the
no more a concession that the trial court erred than is this court’s discussion of
harmless error.
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trier of fact. [Citation.] Moreover, unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is sufficient to support a
conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, McIntire, who knew appellant, was 100 percent certain that he was the
shooter. Appellant argues that McIntire was mistaken because of the darkness and
her distance from the crime scene. The evidence suggests the contrary. First, a
nearby streetlight illuminated the crime scene. Second, Sergeant Martindale
determined that it was 175 feet from McIntire’s position to the crime scene, and
that the view was unobstructed. Thus, McIntire’s identification was neither
“physically impossible [n]or inherently improbable.” As such, the jury was
entitled to rely on it. (People v. Young, supra, 34 Cal.4th at p. 1181.)
Yeats also identified appellant as the shooter. Appellant contends that
Yeats’s identification was unreliable. He notes that Yeats previously stated that
the shooter was 5’7” to 5’8” tall and had a medium build, whereas a defense
witness testified appellant was over six feet tall and weighed over 300 pounds at
the time of the shooting. Yeats never selected appellant’s picture out of a
photographic array, and identified him as the shooter only at trial. Even if Yeats’s
identification was questionable, however, the credibility of her testimony and the
weight of the identification were for the jury to decide. (See People v. Lindsay
(1964) 227 Cal.App.2d 482, 494-497 [inconsistencies between victims’
descriptions of assailant and defendant’s actual appearance at trial and fact that one
victim identified defendant at trial but could not do so at lineup went to weight of
evidence, which is left to the jury to determine in the first instance]; cf. People v.
Marquez (2000) 78 Cal.App.4th 1302, 1306-1307 [evidence sufficient to support
defendant’s robbery conviction despite physical differences between himself and
three witnesses’ description of the robber].) Moreover, the jury was entitled to
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conclude that the person who shot Gentile and Yeats was the same person who,
literally seconds later, pointed a gun at Booth. Appellant does not dispute that he
was that person. In short, appellant’s convictions were supported by substantial
evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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