Filed 2/8/23 P. v. Flores CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B316847
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA482948
v.
JASON ALEXIS FLORES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Remanded with
directions and otherwise affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Gary A. Lieberman, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
A jury convicted Jason Alexis Flores of first degree
murder. He appeals the judgment, arguing he did not receive a
fair trial due to evidentiary errors and prosecutorial
misconduct. Flores concedes his presentence custody credit
should be reduced to 737 days. We affirm the judgment in all
other respects and remand for the trial court to modify the
judgment to reflect Flores’s correct custody credit.
I
A jury convicted Flores of the murder of Aristides Ruiz, a
member of the gang La Mirada Locos who used a wheelchair.
The prosecution showed surveillance video of a man
approaching a gas station in the Silverlake neighborhood of Los
Angeles where Ruiz was talking to people. The man wore long,
baggy, gray shorts with a black stripe, had a yellow metal ring on
his hand, wore a satchel, and held a gun in his hand. The video
shows the same man running back the way he came three
minutes later. Surveillance video from a different vantage point
shows the man crouching behind a white Scion at the gas station,
partially covering his face, extending his arm, and shooting,
hitting Ruiz twice. People at the gas station attempted to help
Ruiz and called the police. Paramedics took Ruiz to the hospital
where he died from the gunshot wounds.
Manuk Tadevosyan worked as a parking attendant at a
business next door to the gas station. When Tadevosyan heard
the shots, he ran toward the street. A man with a gun ran up to
him, pointed the gun at him, and said, “What’s up? What’s
up? What’s up?” before continuing to run away. Tadevosyan
thought the man was 27 or 28 years old and “Spanish.” He was
wearing shorts and a green hat and had a small backpack. His
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body was powerful and a little chubby. When asked if he saw the
man with the gun in the courtroom, Tadevosyan said, “I’m not
sure, but maybe that guy,” motioning toward Flores. Tadevosyan
stated Flores’s body looked the same, but he “forgot the face”
because it had been two years.
Detective Martinez, assigned to investigate Ruiz’s murder,
created a still image from the surveillance video. He showed the
image to Officer Kenny Pintado to see if he could identify the
shooter. Pintado, an officer on the gang enforcement detail in the
Rampart Division, thought he recognized the man. Pintado
reviewed his files on people he had stopped in the area of the
murder and came across his file on Flores. Pintado had
encountered Flores in a traffic stop about a year earlier. Flores
had been driving the car, and Pintado stayed on the passenger
side of the car for the 10- to 15-minute encounter. Flores had
said he was a member of a tagging crew called B.U.D. or
B.U.D.S., which stands for Blazing Up Daily, but that he was no
longer active. Flores told Pintado he had a large letter “B”
tattooed on top of his head and showed Pintado that he had “B-U-
D” tattooed on his stomach. Pintado had learned about B.U.D.S.
from other officers in the gang enforcement detail and seen
B.U.D.S. tagging but had not met any members before
Flores. Pintado stopped Flores in the general area he considered
B.U.D.S. territory. Based on the boundaries of the two groups’
territories, Pintado testified La Mirada Locos would be a rival of
B.U.D.S., a contention confirmed by a conversation Pintado had
with a La Mirada Locos member.
Before meeting Flores in person, Pintado had seen Flores’s
rap music videos on his public YouTube account under his music
name of JBoogie283. The numbers 2, 8, and 3 correlate to the
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letters “B,” “U,” and “D” on a phone keypad. Pintado monitored
these videos as part of his duties for the gang enforcement detail
because gang and tagging crew members sometimes reveal
information in their music videos either through the lyrics or
through the cars, clothes, or weapons they show. In some of his
videos, Flores makes the B.U.D.S. sign and shows his tattoos. In
one music video, Flores raps, “Stay true to the B. That’s all you
gonna see. Me. B,” which Officer Pintado testified showed
allegiance to the crew and a commitment to stay active.
After Pintado identified Flores, Martinez reviewed Flores’s
social media. On the account of one of Flores’s friends, Martinez
saw a picture of Flores posted a day or two before the murder in
which Flores was wearing shorts similar to those in the
surveillance video and holding an object covered by an emoji that
appeared to be a gun. In a posted video, Flores is wearing a
yellow metal ring. Another video posted the day of the murder
identifies Flores’s location at the time as Los Angeles.
When police arrested Flores, they found gray shorts with a
black stripe and two yellow metal rings in his room. Police
placed Flores in a cell with an undercover agent. Flores told the
agent he was a rapper, but when the agent said the risk of losing
everything came with the “rap game,” Flores twice insisted,
“No. It comes with the gang shit,” and told the agent “it’s always
harder for the real ones. It’s easy for all these fake-ass fools . . . .
Like, fuck. You’re rappin about our lives.” Flores said he stayed
in the San Fernando Valley, but his hood was Los Angeles and
“everybody beefs it right there . . . . It’s like a big ole war
zone.” At one point, a detective showed Flores a still image from
the surveillance video of the man holding a gun and two pictures
of Flores from social media. When he returned to his cell, Flores
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told the agent, “They showed me, like, three pictures of – of me
and then, they showed me pictures with the burner.”
A criminal intelligence analyst reviewed the phone records
for phone numbers associated with Flores and his girlfriend from
the day of the murder. The data showed both phones were in Sun
Valley, where Flores lived, around 2:00 p.m. About an hour later,
Flores’s phone began to move toward Los Angeles, eventually
arriving in downtown. The phone then moved toward the
location of the murder. About 15 minutes before the murder,
Flores’s phone pinged off a cell tower 0.3 miles from the
murder. Ten minutes later, the cell phone pinged off a cell tower
0.2 miles away. A few minutes after the murder, the cell phone
was 0.6 miles away. About an hour after the murder, Flores’s
phone was in the Glendale area, as was his girlfriend’s
phone. The two phones then appeared to travel together back to
Sun Valley.
At trial, the prosecutor argued Flores killed Ruiz because
he wanted to be a real gangster. He wanted to prove he was
tough and increase his street credibility by living the lifestyle he
raps about. The trial court and counsel had several discussions
about what type of gang evidence would be allowed in, with the
judge ruling on several in limine motions. Later we discuss these
rulings in more detail.
The jury convicted Flores of first degree murder. The jury
further found true that Flores had possessed a firearm as a felon,
personally and intentionally discharged a firearm in the murder,
and previously had been convicted of a serious felony. The trial
court sentenced him to 75 years to life. The trial court credited
Flores 848 days, based on 737 actual days and 111 good
time/work time days.
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II
Flores’s primary contentions are that he did not receive a
fair trial because of prosecutorial misconduct and evidentiary
errors relating to gang evidence. These theories overlap in
several particulars. None has merit.
A
We address the evidentiary issues.
1
We begin with the erroneous assertion that no evidence
supported the prosecutor’s theory that Flores shot Ruiz to elevate
his status. Flores argues that, because there was no evidence to
support this theory, all gang evidence was improper propensity
evidence the trial court should have excluded. Flores concedes
we review a trial court’s admission of evidence for abuse of
discretion.
Character evidence is inadmissible to show a person acted
in conformity with a character trait on a particular
occasion. (Evid. Code, § 1101, subd. (a).) It can be admissible,
however, to show motive. (Evid. Code, § 1101, subd. (b).) That is
how the prosecutor used it here. She argued Flores wanted to be
a “real one” and that is why he shot Ruiz.
To show this is not a “gang case,” Flores points to the
prosecutor’s concession that he was not a gang member, the lack
of gang allegations in the case, the prosecutor’s concession this
was a “one man show,” Flores’s failure to take credit for the
shooting, and the inactivity of B.U.D.S. This misses the thrust of
the prosecutor’s argument. She readily acknowledged Flores was
not a gang member and that B.U.D.S. was not active. The
prosecutor’s theory instead was that a desire to mimic the gang
lifestyle he rapped about in his music motivated Flores.
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This use of gang evidence is permissible. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1167 [gang evidence is
relevant and admissible when “the very reasons for the
underlying crime, that is the motive, is gang related”].)
Had the prosecutor argued Flores was a gang member and
gang members are violent so therefore Flores was more likely to
have killed Ruiz, that would have been improper propensity
evidence. That was not the prosecution’s theory. Instead, the
prosecutor argued Flores acted as he did, including committing
this murder, not because he was a violent gang member, but
because he wanted to promote his music career, which he did by
mimicking gang culture.
The cases Flores cites are not on point. (Cf. People v.
Memory (2010) 182 Cal.App.4th 835, 859 [gang evidence
introduced to show defendants more likely to react violently to
provocation]; People v. Huyhn (2021) 65 Cal.App.5th 969, 983 [no
evidence group of which defendant was a member was a gang].)
It was not an abuse of discretion to admit this evidence.
Flores argues the trial court should have excluded
Pintado’s testimony because Pintado was not qualified to give an
expert opinion about B.U.D.S. Flores notes Pintado had never
testified about B.U.D.S. before, did not have personal knowledge
about much of the information, and had not met any B.U.D.S.
member other than Flores.
Pintado was sufficiently qualified to testify about
B.U.D.S. Courts allow gang enforcement officers to testify to
knowledge gained from other officers during the course of their
duties. (People v. Sanchez (2016) 63 Cal.4th 665, 671, 698
(Sanchez) [information from other officers appropriate source for
expert background testimony on gangs].) As the trial court
7
stated when overruling Flores’s objection, Pintado based his
knowledge on three sources: 1) conversations with other officers;
2) conversations with Flores himself as well as La Mirada Locos
gang members who said B.U.D.S. was a rival organization; and 3)
objective physical evidence of the group’s existence including
graffiti, tattoos, and symbols. This foundation sufficed.
Flores next argues Pintado’s testimony was inadmissible
because it relied on case-specific hearsay. Case-specific hearsay
relates to facts about the events and people involved in the
current case. (Sanchez, supra, 63 Cal.4th at p. 676.) Flores
appears to argue because Pintado had no personal knowledge of
B.U.D.S., all of his information relied on case-specific
hearsay. This is inaccurate. The information Pintado provided
was proper background information about tagging crews and
B.U.D.S. in general. (Id. at p. 698 [testimony about general gang
behavior and general conduct and territory of particular gang
appropriate background information].) The only arguably case-
specific fact Pintado testified to was that Flores was a member of
B.U.D.S. Pintado had personal knowledge of that fact, which
Flores had admitted to Pintado.
Flores’s argument that the prosecutor improperly
“imput[ed] criminal street gang culture to a group that does not
engage in criminal activities” misses the mark. As the prosecutor
made clear, she was not arguing B.U.D.S. engaged in criminal
activities or that Flores did so on behalf of B.U.D.S. Rather, she
argued Flores engaged in criminal activities on his own to boost
his own reputation for the sake of his music career.
Flores lastly argues the trial court erred by allowing the
jury to see a clip of his rap video. Flores asserts subdivision (a) of
Evidence Code section 1101 banned the video as improper
8
evidence of Flores’s violent character. The court allowed only this
lyric: “Stay true to the B. That’s all you gonna see. Me.
B.” These words show Flores’s allegiance to B.U.D.S. and his
desire to promote that image in his music, which went to the
motive argued by the prosecutor. The trial court did not abuse its
discretion.
2
Flores’s next argument focuses on gang-related and
propensity evidence the jury heard despite rulings by the trial
court that it was inadmissible. The jury should not have heard
this evidence, but none was sufficiently prejudicial to deny Flores
a fair trial.
The inadmissible evidence came in through the testimony
of Martinez and Pintado. We begin with Martinez’s testimony.
Martinez testified police found a gun and ammunition at
Flores’s residence. Before trial, the trial court granted a motion
to exclude this evidence as more prejudicial than probative, a
ruling with which the prosecutor agreed. But when the
prosecutor asked Martinez, “Do you recall what other items you
recovered to associate those shorts to the defendant?,” his
response mentioned the gun and ammunition. The trial court
immediately instructed the jury to disregard the evidence. There
was also testimony that police did not find the gun used in the
shooting.
This testimony was very brief. Moreover, the jury was
aware the gun found was not the one used in the murder.
The trial court’s immediate delivery of a curative
instruction combatted the prejudice from this trial mishap.
Flores also asserts Pintado brought up inadmissible
evidence several times in his testimony. When asked, “if a
9
tagging crew member wanted to gain notoriety or respect, what
would a tagging crew member do?,” Pintado responded, “So a
tagging crew obviously is vandalism where they tag, but the
ultimate crime is murder, which is the ultimate crime of
violence.” The court sustained defense counsel’s objection and
ordered the testimony stricken. The court later again
admonished the jury:
Court: I want to emphasize to the jurors
that the opinion about tagging crew
B.U.D.s gaining notoriety by committing
murder, that that is not to be considered
for any purpose. That testimony was
stricken. If you remember, that is what I
did. But I further want to say, and there
is no foundation for that
opinion. Specifically – I forgot now the
name of the witness.
Ms. Zavala: Officer Pintado.
Court: Pintado. He said something along
the line the B.U.D.s or something engage
in vandalism, and then he said the
ultimate is murder. That is the part that
is stricken. The part that says something
about murder. That is stricken. You are
not to consider it. There is no foundation
for this opinion. It’s an inappropriate
expert opinion.
The trial court immediately struck Pintado’s testimony that
a tagging crew member might commit murder, and the court
made clear to the jury there was no foundation for the
10
testimony. The trial court’s striking of the testimony and strong
admonition cured the harm.
During his testimony, Pintado referred to Flores’s “gang”
tattoos. Defense counsel objected, and Pintado immediately
corrected himself. The trial court also instructed the jury to
disregard the reference to the gang and admonished the witness
to answer appropriately. Later in his testimony, Pintado testified
he monitors gang members who make rap videos and that
B.U.D.S. was a rival of La Mirada Locos.
Flores argues the “unmistakable message from [Pintado’s]
testimony was that appellant was a rival gang member of the
victim.” He argues the jury’s exposure to repeated direct and
indirect references to Flores as a gang member means the bell
could not be unrung.
Although Pintado’s testimony could have been clearer, the
evidence in the case as a whole conveyed to the jury that
B.U.D.S. was not a gang and Flores was not a gang
member. When Pintado misspoke, he corrected himself or the
court corrected him. There was direct evidence showing Flores
was not a gang member and B.U.D.S. was a tagging crew, not a
gang. Direct evidence explained the difference between a tagging
crew and a gang. In addition, the trial court allowed Pintado’s
testimony about La Mirada Locos being a rival of B.U.D.S.
because Flores’s counsel opened the door.
Under these circumstances, the errors were not
prejudicial. Nor did they deprive Flores of due process under the
federal or California Constitutions.
3
Flores argues these errors violated his rights under state
and federal law. He points to the unreliability of eyewitness
11
evidence and argues it should have little weight in harmless error
determinations. As discussed in the preceding section, the errors
were not prejudicial. Eyewitness evidence did not figure in this
analysis. Alone as well as cumulatively, the errors were
harmless under state and federal law. (Chapman v. California
(1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836.)
B
We turn next to Flores’s contention that the prosecutor
committed misconduct by: 1) “smuggling” in inadmissible
evidence; 2) failing to keep Pintado and Martinez from testifying
in violation of trial court rulings; and 3) shifting the burden
during closing argument. Here, timely objections could have
cured any alleged harm. Flores acknowledges a defendant
generally must make an objection to preserve a claim of
prosecutorial misconduct but argues the prosecutor’s pattern of
misconduct excused his counsel from complying with this
requirement. To show it is futile to object, counsel generally
must show it is costly to assert your rights. (E.g., People v. Hill
(1998) 17 Cal.4th 800, 820-822.) Flores has forfeited these
arguments because he has not made this showing.
III
The trial court awarded Flores 848 days of presentence
custody credit, based on 737 actual days and 111 days of good
time/work time credit. The parties agree, as do we, that Flores
was not entitled to presentence conduct credit and the court
should reduce his presentence credit to 737 days.
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DISPOSITION
We remand for the trial court to correct Flores’s
presentence custody credit to 737 days. We otherwise affirm the
judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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