Filed 1/27/20 P. v. Quintanilla CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE UMERCINDO QUINTANILLA,

Defendant and Appellant.

G055923

(Super. Ct. No. 14CF2412)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Denise de Bellefeuille, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed and remanded with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of shooting at an occupied building (Pen. Code, § 246; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). As to counts 1 and 2, the jury found it to be true that defendant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) After trial, defendant admitted to having previously been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), which is a serious felony (§ 1192.7, subd. (c)(31)).

The court sentenced defendant to an indeterminate term of 30 years to life, plus a determinate five-year enhancement. The sentence was calculated as follows: 15 years to life pursuant to the alternative sentencing scheme in the gang-enhancement statute (§ 186.22, subd. (b)(4)(B)), doubled for the prior strike (§ 667, subd. (e)(1)), plus a five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)).

At trial, over defendant’s objection, one of the investigating officers was allowed to testify about the contents of a surveillance video that he had seen but that had been automatically deleted and thus was unavailable at the time of trial. On appeal, defendant contends the video was not authenticated and that the officer’s testimony violated the secondary evidence rule. However, he failed to object on lack of foundation grounds at trial and thus forfeited the issue on appeal. And we find no violation of the secondary evidence rule.

Defendant also contends the evidence does not support counts 1 and 2, but his argument boils down to reweighing the evidence, which we are not permitted to do. Thus we will affirm his convictions.

Defendant further requests that we remand for the court to exercise its recently enacted discretion regarding whether to strike the enhancement for the prior serious felony. The People do not oppose that request and we will grant it. Finally, defendant requests that we correct clerical errors in the judgment, which the People concede. We will grant that relief as well.

FACTS

The Shooting

On July 18, 2014, J. S. lived in a second-floor apartment fronting the 1400 block of North Durant Street in the City of Santa Ana. Around 11:20 p.m., that evening, J.S. and her young children were outside on the walkway, talking to a neighbor. J.S. saw two men walking up the street toward the apartment building, including defendant. Defendant shouted, “Fuck Logan, KPC,” and then fired four shots in her direction. Defendant was wearing a white T-shirt and dark denim jeans. The other man was wearing a white T-shirt and khaki shorts.

After the shots were fired, J.S. hurried her children inside the apartment. She then saw the man in the khaki shorts run directly across the street into an apartment complex, while defendant ran up North Durant Street. Almost immediately after the shots were fired, a police car drove up the street.

Detective Corona was driving northbound on Durant Street when he heard what he believed were three gunshots in quick succession. He then saw a Hispanic male in a white T-shirt, defendant, running up the east sidewalk in the 1400 block of North Durant. Corona kept driving forward and saw a number of people standing on the east and west sidewalks. Defendant was the only one running. Corona slowed down and asked the bystanders if anyone was injured or needed help, and various individuals pointed north in the direction defendant was running.

Corona continued driving north and accelerated to catch up to defendant. At about 1610 North Durant, Corona saw defendant bending over a guard rail with his right hand inside a bush. Defendant turned his head toward Corona, stood up, and continued running. Corona intercepted defendant at the north driveway of 1610 North Durant and instructed him to stop. Corona drew his firearm, instructed defendant to get on his knees, and handcuffed him. Defendant was wearing dark colored jeans and a baggy white T-shirt and had a buzz-cut.

Corona asked defendant what he hid in the bush. Defendant replied, “Nothing.” Corona directed two additional officers who had arrived at the scene to the bushes. However, they were unable to find anything. Corona himself went back to the bushes and searched the bush that he believed defendant’s hand had been in. He located a firearm. There was one round in the chamber and four rounds in the magazine. The magazine could hold 10 rounds.

Police Investigation

About 15 to 20 minutes after the shooting, officers asked J.S. to take a look at defendant to see if she recognized him. J.S. confirmed that defendant was the shooter.

An officer found what appeared to be a bullet fragment in the front entryway to the apartment complex where J.S. lived. No other bullets or casings were located. An impact mark was found about four to six feet below the balcony of the walkway. There was no way to determine when the impact mark had been left.

DNA samples were taken from the firearm and defendant. The sample from the handgun contained a mixture of multiple DNA contributors, but no DNA profile could be established for any of the contributors due to the low level of DNA in the sample. The handgun was dusted for fingerprints, but no fingerprints were found.

The day after the shootings, Officer Cardenal went to the apartment complex across the street from J.S.’s building to see if there was surveillance footage of the incident. Cardenal knew that the apartment complex across the street had video cameras because he had reviewed surveillance video from those cameras in connection with previous incidents. Cardenal contacted the manager of the apartment complex, who allowed him to review the video.

Although the video was not played at trial due to it being automatically deleted by the surveillance system, Cardenal testified to what he observed in the video. When Cardenal checked the time stamp on the surveillance video feed, he noted that the time was about 54 minutes fast. There were two cameras at different angles that captured North Durant Street. The time stamp on the relevant video from the prior night was 16 minutes and 26 seconds, or 12:16 a.m., which, after adjusting the 54 minutes, was the time of the shooting incident. The video footage was grainy, and there was no audio.

Cardenal took notes while he was watching the video and later used his notes to write a report. On the video, he saw a male heading north on foot on the east sidewalk of North Durant. The man had short dark hair and was wearing a light-colored, possibly white, T-shirt and dark colored pants. The man started running northbound, and there were two flashes—possibly muzzle flashes—that came from his hand. When the man reached the north part of the apartment complex, Cardenal saw two to three more flashes. The man continued north on foot until he was outside of the camera’s field of view. Approximately two seconds later, a police car driving northbound came into view.

Cardenal asked the apartment manager if she could make a copy of the video for him. She said that she did not know how and explained that the video footage would stay in the system for 10 days. Cardenal gave instructions to the detectives’ bureau to go back to the manager and make copies of the video. About two weeks later, a detective returned to the apartment manager to obtain a copy, but by that time the video had been automatically erased.

Gang Evidence

The People put on evidence of a history of contacts with defendant demonstrating that he was a gang member. On January 19, 2007, a detective came into contact with defendant in territory claimed by the Krazy Proud Criminals gang (KPC). Defendant said that he had been a member of KPC since around 2006. According to defendant, he was walked into the gang because he grew up in the neighborhood. He indicated that one of the rivals of KPC was the Logan criminal street gang (Logan Street).

In January of 2008, this same detective had a conversation with defendant in another area in KPC territory. Defendant said that he had been a member of KPC for about a year. He said his moniker was “Pelon,” and also said, “Fuck Logan and Latin Boys.” Defendant said that he would back up his homies from the KPC gang and that he would retaliate if any of his homies were harmed by rivals.

On June 11, 2008, defendant told another detective that he had been hanging around with KPC for approximately two years. He identified Logan Street as a rival of KPC. He confirmed that he would fight in response to any disrespect to KPC.

Defendant had the letters “KPC” tattooed on his abdomen and the word “malos” tattooed just above his hairline on his head. “Malos” is another name that KPC goes by. The prosecution’s gang expert testified that it was his opinion that defendant was a member of the KPC gang on the date of the shooting and was an active participant.

The People also put on evidence that one of the residents of the apartment complex, A.R., was a member of Logan Street. On March 6, 2009, A.R. told a detective that he had been a Logan Street member since the age of 12 and that his moniker was “Joker.” A.R. has a number of Logan Street tattoos. He was convicted on December 12, 2014, for possession of heroin for sale with a gang charge and enhancement. The prosecution’s gang expert opined that A.R. was a member of Logan Street at the time of the shooting.

A.R. lived in the apartment where defendant shot and was home at the time of the shooting.

The prosecution’s gang expert testified that at the time of the shooting, Logan Street was the primary rival of KPC. He explained that if a Logan Street gang member were within KPC territory that would be considered an act of disrespect to KPC. The 1400 block of North Durant Street is in KPC territory. Detective Beaumarchais noticed that during the time that A.R. was living on North Durant, there had been an increase in the number of calls for service in that area. Beaumarchais had been called out to that address before in connection with another shooting.

DISCUSSION

Testimony About the Video Tape

Defendant contends the court erred in permitting Officer Cardenal to testify about the contents of the video from the apartment complex, which was erased and thus unavailable at trial. He argues the testimony lacked foundation because the video was never authenticated, and also that the testimony violated the secondary evidence rule. (Evid. Code, §§ 1520-1523.)

Defendant supports his argument concerning a lack of foundation for the video by citing Evidence Code section 1521, subdivision (c), which codifies the secondary evidence rule, and which provides, “Nothing in this section excuses compliance with Section 1401 (authentication).” (Ibid.: see People v. Landry (2016) 2 Cal.5th 52, 86 [“A writing that qualifies for admission under the secondary evidence rule must, nonetheless, be authenticated before it can be admitted”].) However, defendant never objected to the video on the ground that it lacked foundation, and thus defendant forfeited the objection. (People v. Polk (2010) 190 Cal.App.4th 1183, 1194 [“If a defendant fails to make a timely objection on the precise ground asserted on appeal, the error is not cognizable on appeal”].)

Defendant filed a motion in limine to exclude the testimony on the ground that, “without the video itself, [the testimony] is a violation of the Secondary Evidence Rule as codified in Evidence Code sections 1521-1523.” But defendant never specifically objected on the ground that the video itself lacked foundation. Had defendant done so, the People could potentially have supplied that foundation at trial. On appeal, the People cannot. Thus if we were to excuse defendant’s lack of objection, the People would be prejudiced.

Defendant contends that his objection under the secondary evidence rule was enough to preserve the authentication objection because Evidence Code section 1521 specifically does not excuse the authentication requirement, and thus he concludes they are one and the same. The language of that provision, however, which is quoted above, leaves no room for dispute that authentication is a separate requirement. Not only does it point to a completely separate provision in the Evidence Code, but the language indicates that even if the secondary evidence rule is satisfied, authentication must also be satisfied. They are separate requirements and thus require separate objections.

Regardless, there was sufficient evidence admitted at trial to authenticate the video. Authentication is “the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” (Evid. Code, § 1400.) “Authentication of a writing is required before secondary evidence of its content may be received in evidence.” (Evid. Code, § 1401, subd. (b).) “A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) The foundation for authentication of a video “may be supplied by other witness testimony, circumstantial evidence, content and location.” (Id. at p. 268.)

The day after the shooting, Cardenal contacted the manager of the apartment complex across the street from J.S.’s building to see the footage. Cardenal was aware that there were surveillance cameras in that location because he had reviewed surveillance videos from those cameras in connection with prior incidents.

The date and time stamp on the video footage lined up with when the shooting incident occurred. In addition, what Cardenal saw was consistent with what J.S. and Detective Corona described—a man wearing a light-colored T-shirt and dark pants firing a series of shots in the 1400 block of North Durant and then running northbound. The video footage captured a police vehicle driving up North Durant right after the shots were fired, consistent with Detective Corona’s testimony. The content, location, and timing of the video recording was sufficient for a jury to find that it was a fair and accurate representation of the shooting incident.

Next, defendant contends Officer Cardenal’s testimony did not satisfy the secondary evidence rule. In particular, Evidence Code section 1523 provides, “(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.

“(b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.

“(c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied:

“(1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means.

“(2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.”

Defendant contends that the People did not satisfy subdivision (c)(1) because the video was “reasonably procurable.” But subdivisions (b) and (c) provide alternative means for admitting secondary evidence, and the People did satisfy subdivision (b). Subdivision (b) applies where the writing is lost or destroyed. Subdivision (c) applies where the writing is simply not in the proponent’s possession. Subdivision (b) applied here, and there was no evidence that the failure to procure the video was a result of fraudulent intent. Accordingly, Detective Cardenal’s testimony was admissible secondary evidence of the video.

Substantial Evidence

Defendant contends there was no substantial evidence that defendant was the individual who fired the shots at the apartment complex. We disagree.

“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In making this determination, the reviewing court does not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See, e.g., People v. Jones (1990) 51 Cal.3d 294, 314.) All conflicts in the evidence and all reasonable inferences must be resolved in favor of the judgment. (People v. Maury (2003) 30 Cal.4th 342, 396.)

The evidence showed defendant’s clothing matched the shooter; he was positively identified by an eyewitness; an officer saw him stashing a partially unloaded gun into a bush immediately before being apprehended; and defendant had a gang-related motive for the shooting. This evidence was ample.

Defendant contends the evidence was insufficient because J.S., the eyewitness who identified defendant, had a history of misdemeanor convictions, did not initially tell the police about the second individual with the shooter, and did not initially tell police that the shooter yelled out “Fuck Logan, KCP.” These arguable flaws in J.S.’s testimony, however, were for the jury to resolve, not us.

Defendant also points out that there was a discrepancy among the witnesses as to which side of the street the shooter was on, that the DNA testing was inconclusive, and that the bullet fragment was never tied to the gun in evidence. Again, these were considerations for the jury, not us. The evidence was sufficient to support the verdict.

Senate Bill No. 1393

Defendant’s sentence in this case includes a five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1). At the time of defendant’s sentencing, the court had no power to strike or dismiss the five-year serious felony prior. While this appeal was pending, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess) into law, which took effect on January 1, 2019. Senate Bill No. 1393 amends sections 667, subdivision (a) and section 1385, subdivision (b) so the court may now, in its discretion, strike or dismiss a prior serious felony conviction for sentencing purposes.

The People do not object to a limited remand for purposes of allowing the court to exercise its discretion. We agree Senate Bill No. 1393 applies retroactively and that remand is necessary so the court may exercise its discretion and decide whether to strike the prior serious felony enhancement.

Clerical Errors

Finally, defendant points out certain clerical errors in the minutes and abstract of judgment and requests that they be corrected. The People do not oppose that request.

“When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) An appellate court may order correction of clerical errors in a minute order or abstract of judgment. (Id. at p. 389; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

The sentencing minute order provided that on count 1, “defendant is sentenced to STATE PRISON for a term of 30 years to life which is triple the term pursuant to Penal Code 667(d)(e)(2) and Penal Code 1170.12(b) and (c)(2).” However, the 30-year-to-life term resulted from a doubling of the underlying 15-year-to-life sentence based on one prior strike (assault with a deadly weapon). The court struck the second prior strike based on defendant’s conviction for active gang participation. Therefore, the minute order incorrectly states how the 30-year-to-life term was calculated.

Additionally, the court reserved jurisdiction regarding restitution to be paid to the victim and imposed a mandatory $300 state restitution fine. However, the minute order states, “Pay restitution to the victim(s) in the amount of $300.00 as to count(s) 1.” The abstract of judgment also reflects that defendant was ordered to pay $300 to the victim for restitution as opposed to a $300 restitution fine. Because the discrepancies between the oral pronouncement on the one hand and the minute order and abstract of judgment on the other appear to be the result of clerical errors, we will remand with directions that the court correct the errors.

DISPOSITION

The matter is remanded with instructions that the court exercise its discretion under sections 667, subdivision (a) and section 1385, subdivision (b), regarding whether to strike defendant’s 5-year enhancement for the prior serious felony. The court is further instructed to correct the clerical errors identified above. Upon doing so, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.