Filed 7/18/22 P. v. Torres CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B311356
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA448503)
v.
PEDRO TORRES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark S. Arnold, Judge. Affirmed.
Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Pedro Torres was convicted of
attempted murder and shooting at an occupied vehicle. Gang
and firearm use allegations were found true as to both counts.
The trial court denied defendant’s motion for a new trial and
sentenced him to a prison term of 17 years, plus 25 years to life.
On appeal, defendant contends the court erred in denying his
motion for new trial because there was no credible, substantial
evidence demonstrating his involvement in the crimes and
because relevant third party culpability evidence was improperly
excluded.
We reject defendant’s arguments and affirm the judgment
of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged, along with codefendant Jose
Steven Ramos, also known as Chepe, with one count of
premeditated attempted murder (Pen. Code, § 187, subd. (a),
§ 664; count 1) and one count of shooting at an occupied vehicle
(§ 246; count 3). It was alleged the attempted murder was
committed for the benefit of a gang (§ 186.22), and that defendant
personally used and discharged a firearm causing great bodily
injury to the victim (§§ 12022.53, subds. (b)-(d), 12022.7,
subd. (a)). The gang allegation and firearm use allegations
pursuant to section 12022.53 were also alleged as to count 3.
(Count 2 was dismissed before trial.) Codefendant Ramos is not a
party to this appeal.
1. The Shooting
On July 9, 2016, G.C. was on his way to visit a friend. (We
refer to the victim and witnesses by their initials to protect their
privacy.) He was driving his red or burgundy-colored Ford Edge.
While driving down 53rd Street in Los Angeles, he saw an
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acquaintance he knew as Jesse running down the sidewalk.
Jesse waved at him to pull over. G.C. pulled into a driveway and
stopped. Jesse jumped into the front passenger seat.
Almost immediately after Jesse got into the car, G.C.
noticed a man standing about four or five feet from his driver’s
side door, pointing a gun at him. The gun was larger than a
handgun, about a foot and a half long. The man was about five
feet eight inches to five feet nine inches tall and approximately
160 to 170 pounds. He had short hair, “a bit” longer than G.C.’s
hair. The man said “Playboys” and started shooting at him.
G.C. tried to back out of the driveway but there was a white
sedan blocking him. A Hispanic man was in the driver’s seat.
G.C. rammed the white sedan in trying to get away. Jesse
jumped out of the car and ran off. G.C. never saw Jesse again.
Bleeding from two gunshot wounds, G.C. got out of his car
and saw the shooter get into the white sedan behind him. The
car then sped off. G.C. asked a bystander to call 911.
M.H. lived next door. She was outside with her daughter
when the events unfolded. After her daughter called 911 in
response to the shooting, M.H. spoke to the 911 operator and
reported a shooting had just occurred.
Officers arrived on the scene and spoke briefly with G.C.
about what had happened. G.C. was then taken to the hospital.
He had gunshot wounds to his neck and stomach that required
surgery. Doctors left a bullet lodged in his cervical vertebrae
because removal was determined to be too risky. G.C. was
hospitalized for a week, and at the time of trial, he was still
suffering some disability, including difficulty turning his head
and lifting heavy objects.
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2. Witness M.H.
Shortly after the shooting, Officer Jorge Munoz spoke with
M.H. She was nervous and told him she did not want to be seen
talking to the police because gang members were involved. She
told him her former neighbor, whom she knew as Chepe, drove up
in a white sedan. Someone from the front passenger seat got out
with a gun and shot at someone seated in a red car in the
driveway next door. M.H. said Chepe was known to be in the
Playboys gang and his wife and children still lived in the house
next door.
Several days later, M.H. was shown a six-pack photo array
(six-pack) and identified codefendant Ramos as Chepe.
At trial, M.H. testified that a man she knew as Chepe used
to live next door, but he had moved out. His wife and children
still lived there. She identified codefendant Ramos in court as
Chepe. She denied knowing he was a member of the Playboys
gang but said she may have heard a rumor he was a gang
member.
M.H. said she was outside with her daughter watering her
yard when a red car pulled up in the driveway next door. She
saw a man, who was facing away from her, pointing a gun, larger
than a handgun, at the red car. She took her daughter inside and
heard gunshots. She looked out the window and noticed a white
car. She denied seeing Chepe in the driver’s seat and said she
did not recall her conversation with Officer Munoz. She saw a
man bleeding and crying out for someone to call 911.
M.H.’s conversation with the 911 operator was played for
the jury. She confirmed it was her voice on the recording. She
told the operator that a man called Chepe drove up in a white
car, another man got out of the car and shot at a person in a red
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car, then got back into the white car. The white car then drove
away. M.H. testified that when she was talking to the 911
operator she was “nervous and confused” and “not sure what
[she] was saying.”
M.H. authenticated her initials on the six-pack identifying
Chepe and her handwritten note that said she saw Chepe driving
the white car and that a passenger got out and shot a person in
another car.
M.H. said at some point after the shooting, a woman came
to her home and yelled something to the effect that she better
stop talking to the police. After coming to court, she realized the
woman was Ramos’s mother.
3. Victim G.C.
G.C. was first interviewed by Detectives Ricardo Rivera
and Jesse Audelo of the Los Angeles Police Department on
July 12, 2016, three days after the shooting, while he was still
recovering in the hospital. G.C. told Detective Rivera the shooter
was probably about the height of Detective Audelo. Detective
Audelo is five feet 10 inches tall. G.C. could not identify the
driver of the white car, only that it appeared to be a man.
The next day, Detective Audelo returned to the hospital to
show G.C. a six-pack. Based on information he had learned from
an officer in the gang unit, defendant’s photograph was in
position No. 2. G.C. identified defendant as the shooter and
placed his initials next to his photo. G.C. testified he was
thinking clearly at the time despite his physical condition and
was certain defendant was the person who shot him.
In September 2016, G.C. was brought to the police station
to view an in-person lineup of suspects. Defendant was standing
in position No. 5. Detective Audelo testified that after the
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admonitions were given, G.C. walked up to the one-way mirror
and stood directly in front of defendant. G.C. looked at defendant
for about 30 seconds and then identified him as the shooter.
At trial, G.C. positively identified defendant as the person
who shot him.
On cross-examination, G.C. admitted that videotape from
the body cameras worn by the responding police officers showed
him telling the officers the shooter tried to steal his car and that
the suspect or suspects were bald. G.C. explained that no one
demanded his car, he just assumed that is what they were trying
to do. He reiterated the only thing the shooter said to him was
“Playboys.” He said the shooter was not bald and he must have
been confused.
4. Witness F.R.
On the afternoon of July 9, 2016, F.R. was sitting on the
hood of his car, which he had double-parked on 53rd Street. F.R.
was waiting for a parking space to open up when the shooting
occurred.
F.R. testified he had lived in the neighborhood for about
seven years and knew it was territory claimed by the Playboys
gang. As he waited for a parking space, he noticed a white sedan
was double-parked behind him. Three guys were talking in a
driveway across the street. One had long hair in braids and was
“tatted up.” One had very short hair, almost bald. F.R. had seen
those two hanging out together before and he knew the guy with
the long hair and tattoos was in the Playboys gang. At some
point, a red car started to drive down the street. F.R. heard one
of them, perhaps the third guy, say, “that’s him.” The red car
eventually pulled up and parked in the driveway. The white
sedan moved up behind the red car to block it. Almost
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immediately thereafter, F.R. heard gunshots but did not see who
fired the shots. The red car tried to back out and crashed into the
white sedan.
F.R. used his phone to videotape the white sedan driving
off. F.R. admitted he initially told the police he could not identify
the individuals in the white car, even though he recognized them
from the neighborhood. He also said he was unsure of who was
driving as they left, but he thought it was the one with short hair
who was almost bald, and the guy with the long hair was in the
passenger seat. F.R. showed the video to Officer Munoz. The
videoclip also showed a Hispanic male fleeing the scene on foot.
F.R. testified he was scared to come to court, that he had
been told gang members would come after him if he testified, and
that was the reason he had refused to appear and had to be
subpoenaed. F.R. identified Ramos as the individual with long
hair and defendant as the individual with short hair who looked
almost bald. He said he was confident they were the two
individuals he saw on the driveway that day and who he had seen
together in the neighborhood on prior occasions.
On cross-examination, F.R. denied having lunch with the
prosecutor or Detective Rivera before his testimony. He said the
reason he did not identify the two defendants earlier in the day
was because he could not see them clearly at that time, because
they were obscured “behind ladies,” apparently referring to their
respective attorneys.
5. Other Evidence
Officer Luis Lopez, who testified as the prosecution’s gang
expert, was familiar with codefendant Ramos. He knew him to
be an active Playboys gang member with the moniker Chepe.
Officer Lopez was also familiar with defendant, having learned
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from “at least two different confidential informants” as well as
other individuals from the community that Ramos and defendant
were associates and hung out together “quite a bit.” Officer
Lopez told Detective Audelo about the relationship between
Ramos and defendant and suggested he put defendant’s
photograph in a six-pack. Detective Audelo prepared the six-pack
he showed G.C. at the hospital based on this information from
Officer Lopez.
Officer Lopez testified about the Playboys gang, their
claimed territory, membership, activities, tattoos, hand signs,
known hangouts and gang culture generally. He identified
Ramos, defendant and other Playboys members in various
photographs taken at known gang hangouts. There was graffiti
associated with the Playboys gang on the curb near where the
shooting occurred.
The police located a white Buick parked on a street a few
blocks from where the shooting took place. It had damage on one
side with red paint transfer. The forensic unit dusted the car for
fingerprints. One fingerprint from a soda can inside the car was
a match to codefendant Ramos. None of the prints obtained from
the car was a match to defendant. Evidence was presented
showing that Ramos bought the Buick in February 2016, about
five months before the shooting.
Defendant was arrested on July 14, 2016. At the time he
was booked, defendant was reported to be five feet six inches tall
and 135 pounds. A search was conducted at defendant’s home.
No evidence related to the shooting was recovered. On July 26,
2016, codefendant Ramos was arrested. He ran when police
arrived at his home and was apprehended with the assistance of
a canine unit.
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6. Defense Evidence
Dr. Kathy Pezdek, a professor of psychology who specializes
in cognitive science, testified about the different factors that
impact the reliability of eyewitness identification, such as stress,
duration of exposure, lapse of time from exposure to
identification, complications arising from cross-race identification
and the procedures used in the identification process.
Marc Scott Taylor, a forensic scientist, testified about the
DNA samples taken from several personal items located in the
white Buick, including a razor and a container of lip balm. One
sample contained male DNA that did not match defendant or
Ramos. The other samples were inconclusive.
7. The Verdict and Sentencing
The jury found defendant guilty of attempted murder and
shooting at an occupied vehicle and found true the personal
firearm use and gang allegations. The jury found not true the
allegation the attempted murder was premeditated.
Defendant was sentenced to a 17-year determinate term
plus a consecutive term of 25 years to life on count 1 (7-year
midterm for attempted murder, plus 10 years for the gang
enhancement and 25 to life for the personal firearm use
enhancement). The lesser firearm use enhancements were
imposed and stayed. The court also imposed and stayed sentence
on count 3 pursuant to Penal Code section 654.
This appeal followed.
DISCUSSION
1. Insufficient Evidence
Defendant contends the trial court abused its discretion in
denying his motion for new trial based on insufficient evidence.
Defendant argues there is insufficient evidence to establish his
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involvement in the shooting beyond a reasonable doubt. He says
the victim’s identification of him as the shooter was problematic
at best, the testimony from the other witnesses was
contradictory, and there was no physical evidence connecting him
to the shooting.
“The trial court has broad discretion in ruling on a new
trial motion, and its decision will be disturbed only for clear
abuse of that discretion.” (People v. Iraheta (2014)
227 Cal.App.4th 611, 619 (Iraheta), citing People v. Ault (2004)
33 Cal.4th 1250, 1260.) We find no abuse of discretion.
It is well established that “unless the testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.” (People v.
Young (2005) 34 Cal.4th 1149, 1181; see also Judicial Council of
Cal., Criminal Jury Instructions (2019) CALCRIM No. 301 [“The
testimony of only one witness can prove any fact.”].)
There was nothing physically impossible or inherently
improbable about G.C.’s identification of defendant as the person
who shot him. G.C. identified defendant from a six-pack, in an
in-person lineup, and again in court during trial. G.C. said he
was certain defendant was the shooter.
Defendant argues there were inconsistencies that undercut
G.C.’s credibility, including whether defendant fit the physical
description provided by G.C., as well as contradictory testimony
from the other witnesses.
To the extent there were inconsistencies in G.C.’s
testimony, those were for the factfinder to weigh and resolve.
Given the totality of G.C.’s testimony, the jury was justified in
crediting his identification of defendant as the shooter, as was
the court in ruling on and denying defendant’s motion for a new
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trial. Defendant has not shown the trial court abused its
discretion in concluding the evidence at trial was sufficient to
support the verdict.
2. Third Party Culpability Evidence
Defendant contends the trial court abused its discretion in
denying his motion for new trial on the grounds his proffered
third party culpability evidence was improperly excluded.
Defendant says the fingerprints lifted from the outside of the
white Buick, four of which belonged to two known Playboys gang
members, were relevant physical evidence that cast doubt on his
guilt and should have been admitted. We apply the same
deferential standard of review to the trial court’s order excluding
evidence as we applied to the claim of insufficient evidence.
(Iraheta, supra, 227 Cal.App.4th at p. 619.) Again, we find no
abuse of discretion.
Third party culpability evidence is relevant and generally
admissible if it links the third person to the “actual commission of
the crime.” (People v. Brady (2010) 50 Cal.4th 547, 558; accord,
People v. Hall (1986) 41 Cal.3d 826, 833 [“there must be direct or
circumstantial evidence linking the third person to the actual
perpetration of the crime”].) Evidence of mere motive and
opportunity is insufficient. (Brady, at p. 558.)
Here, defendant did not establish any connection between
the two other Playboys gang members and the shooting of G.C.
The fingerprint evidence proves only that they touched the
outside of the white Buick at some unspecified time.
Codefendant Ramos bought the Buick almost five months before
the shooting, and any number of fellow Playboys gang members
could have had access to Ramos’s car during that time.
Defendant was free to argue the lack of physical evidence and
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that none of the fingerprints from the car were a match to him.
Indeed, defense counsel emphasized this point in closing
argument, along with the lack of any DNA evidence linking
defendant to the personal items located in the car. Defendant did
not present evidence, however, that either of the two Playboys
were involved in the crime and left their prints on the car on the
day of the shooting. Defendant offered only speculation they may
have been involved.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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