Filed 1/27/20 P. v. Rivera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ALBERT RIVERA, JR.,

Defendant and Appellant.

G056705

(Super. Ct. No. 13WF2476)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed and remanded for further proceedings.

Gerald J. Miller, 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, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Albert Rivera, Jr., was convicted of attempted voluntary manslaughter and other crimes for aiding and abetting the shooting of Ray Perez. On appeal, he contends: 1) the trial court erred in excluding evidence Perez brandished a firearm on another occasion, 2) there is insufficient evidence to support the jury’s finding the shooting was gang related, 3) the trial court erred in failing to instruct the jury on a lesser included offense, and 4) his presentence credits are incorrect. Finding no basis for reversal, we affirm the judgment. However, we remand the matter to permit the trial court to address appellant’s credits claim.

FACTS

Perez was shot in a Westminster alley located between appellant’s house and a strip mall. The shooting was precipitated by an argument that occurred at the mall between appellant and his friend Tony Martinez on one side, and Perez on the other. During the argument, appellant and Martinez made hand gestures toward Perez and were yelling back and forth with him. Perez was accompanied by a woman who was standing by the driver’s door of a white Honda in the parking lot. She was screaming for Perez to get into the car with her, and eventually he did, at which point appellant and Martinez ducked into the alley, and the white Honda left the scene.

Appellant and Martinez ran through the alley to appellant’s nearby neighborhood. Along the way, one of them said, “He’s probably going down the alley,” and appellant said, “Get the heat.” Appellant continued on to his house, and Martinez went across the street to the home of Robert Torres.

A few minutes later, appellant and Martinez reappeared in the area, along with Torres, Jose Ramos and Steven Gifford. A woman at appellant’s house yelled out to appellant, “Don’t go there, don’t mess with that person.” However, appellant and his cohorts walked to the alley and set up a human roadblock by standing in a line across the width of the alley. Someone in the group yelled, “He’s coming down the alley,” and moments later the white Honda came motoring toward them.

Perez was in the front passenger seat of the car, and his female companion from the mall was driving. When she saw appellant’s group, she slammed on the brakes, and Perez stepped out of the vehicle. The men in appellant’s group taunted Perez, saying, “Fucking bring it on” and “let’s do this.” In response, Perez put his hands up and said, “I don’t want to fight,” “I don’t want no beef,” but the men began walking toward his car. Perez scurried to the rear of the vehicle, and the trunk popped open. He grabbed a rifle from the trunk and came up along the side of the car. At that point, appellant yelled, “Shoot him, shoot him.” Torres drew a .38 revolver and fired four shots, one of which hit Perez in the arm. Perez then jumped inside the Honda, and the car sped away.

After the shooting, Torres gave appellant the gun and ran home; everyone else fled to appellant’s house. Within minutes, a police officer arrived on the scene and contacted appellant. Asked about the shooting, appellant feigned ignorance and claimed there was no one else at his house. The officer however soon discovered that Martinez, Ramos and Gifford were all there, and when the police searched the house, they found the revolver used to shoot Perez, as well as an AK-47 assault rifle.

Appellant and Torres were jointly tried, although Torres is not a party to this appeal. They faced charges of attempted premeditated murder and shooting at an occupied vehicle, as well as various gang allegations. In addition, appellant was separately charged with possessing an assault weapon and possessing methamphetamine for sale. He pleaded guilty to the drug charge early on.

At trial, the prosecution called Westminster Police Detective Andrew Stowers to prove the gang allegations. He testified about the general characteristics of Hispanic street gangs, saying they earn respect by committing violent acts and defending their turf from rival incursions. He also said gang members are very loyal to each other and back each other up when needed.

Asked about the particulars of this case, Stowers said Torres and Ramos belonged to the West Treces gang, and Perez was in a rival gang known as the Orphans. Stowers said Perez was shot near the border of the two gangs’ territories, just inside West Treces’ turf. As for appellant, Martinez and Gifford, Stowers said they were members of the Compton 132nd gang. Stowers admitted he did not know anything about that gang and had never even heard of it before this case arose.

However, Stowers said the fact appellant and Torres belonged to different gangs did not mean the shooting was not gang-related. In that regard, he said, “[I]n criminal Hispanic street gangs there is an overall understanding of the role of backup. Therefore, they are there to back each other up.” According to Stowers, this principle was on full display when West Treces members Torres and Ramos arrived on the scene with a gun to help appellant and Martinez deal with any potential threat posed by Perez.

Stowers further opined that by shooting Perez, Torres not only showed support for Compton 132nd, he benefited his own gang in several respects. First and foremost, the shooting enabled West Treces to protect its territory from a rival gang member and show it is not to be trifled with. In addition, the shooting was likely to instill fear in others and enhance the gang’s overall reputation for violence and lawlessness.

Neither appellant nor Torres offered any evidence on their behalf, but during closing arguments, their attorneys contended Torres acted in lawful self-defense by shooting Perez. In so arguing, defense counsel focused on the fact Torres did not draw his weapon and start firing until Perez got a rifle from the trunk of his car and came around the side of the vehicle with the weapon. The defense asserted this created an imminent danger to Torres, justifying the use of deadly force to quell the threat.

In response, the prosecutor emphasized that Torres and his companions blocked Perez’s car in the alley, challenged him to fight after he got out of the car, and then began walking toward him after he made it clear he did not want to fight. The prosecutor argued these aggressive actions effectively forced Perez to retrieve the rifle and thereby created the conditions upon which the defendants’ claim of self-defense was based. Therefore, Torres was not entitled to shoot Perez in self-defense.

With respect to that issue, the jury was instructed a person does not have the right to self-defense if he provokes a fight with the intent to create an excuse to use force. The trial court also instructed on attempted voluntary manslaughter, as a lesser included offense of attempted murder, on the theory of “imperfect self-defense,” which applies when the defendant honestly but unreasonably believes his actions were necessary to counter a deadly threat.

Proving itself receptive to this theory, the jury acquitted defendants of attempted murder and found them guilty of attempted voluntary manslaughter. It also convicted them of shooting at an occupied vehicle, found the gang allegations true, and found appellant guilty of possessing an assault weapon. The trial court sentenced appellant to 10 1/2 years in prison for his crimes.

DISCUSSION

Subsequent Incident Involving Perez

Appellant contends the trial court erred by not allowing him to present evidence regarding an unrelated incident during which Perez brandished a firearm at his home during a domestic dispute. We do not believe the court abused its discretion by excluding this evidence.

In conjunction with defendants’ request to admit the evidence, the trial court conducted a hearing pursuant to Evidence Code section 402. At the hearing, Perez’s brother Marco testified he was watching television at home with his parents on January 6, 2014, which was roughly six months after the shooting in this case occurred. Perez and his girlfriend were also at the house. They started arguing, and at one point Perez went into the kitchen and retrieved a large knife. According to Marco, Perez was waiving the knife around and “acting crazy,” like he was “on something.” After arguing with his parents for several minutes, Perez went into his bedroom and returned with a rifle. He did not point the weapon at anyone, but the situation was very tense as Perez continued to rant and rave. Ultimately, however, his father seized the rifle from him, and the episode ended peacefully when the police arrived on the scene.

Defense counsel informed the court that, as a result of this incident, Perez was charged with two counts each of assault with a firearm and brandishing a firearm, but he ended up pleading guilty to just one count of possessing a firearm as a felon. Defense counsel also informed the court that, besides Marco, they had subpoenaed four other people who had information about the incident: Perez’s parents and two of the police officers who responded to the scene.

On the merits, defense counsel argued the incident was admissible under Evidence Code section 1101 to show Perez’s state of mind at the time of the shooting in this case. More particularly, counsel argued the incident was relevant to undermine the suggestion Perez was a passive victim who obtained the rifle from the trunk of his car in self-defense in response to the threat posed by appellant’s group. Counsel hoped the domestic dispute evidence would turn that theory on its head by showing Perez was out for blood when he showed up in the alley with a rifle in his trunk, and therefore Torres acted in lawful self-defense when he fired at him.

The trial court was skeptical of this theory, fearing the subject evidence did nothing more than show Perez’s propensity for gun violence. It also expressed concern the evidence would bog down the trial and confuse the jury with information regarding an unrelated incident that bore little resemblance to the facts in this case. Finding these negative side effects far outweighed any probative value the evidence had to offer, the court excluded the evidence altogether.

Pursuant to Evidence Code section 1101, evidence of a person’s conduct on one occasion is generally inadmissible to prove he acted in conformity with that conduct on another occasion. (Evid. Code, § 1101, subd. (a).) Such evidence may be admitted if it is relevant to prove an issue other than the person’s propensity, such as intent or absence of mistake. (Id., subd. (b).) However, even if the evidence is relevant in that regard, the trial court may exclude it under Evidence Code section 352 if its probative value is substantially outweighed by the probability it would be unduly time consuming or create a substantial danger of confusing the issues or misleading the jury. (People v. Rogers (2013) 57 Cal.4th 296, 326.) Rulings made under these evidentiary provisions are reviewed for an abuse of discretion, meaning they will not be disturbed on appeal unless the trial court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Foster (2010) 50 Cal.4th 1301, 1328–1329.)

The trial court’s decision to exclude evidence of the incident involving Perez and his family does not rise to this level. In fact, we are hard pressed to see how the incident had any logical bearing on the issues presented in this case. The main issue at trial was self-defense, which focused on Torres’ state of mind, not Perez’s mental state. The fact Perez pulled a rifle while arguing with his family on a separate occasion does not shed any light on what Torres was thinking at the time of the shooting. Appellant argues the family incident was relevant to prove Perez was a “hot head” who Torres had a right to shoot in self-defense, but the brandishing incident does not show Perez was a hot head six months earlier, and, of course, there was no way for Torres to have known about the later incident. Appellant claims the incident was relevant to prove Perez was “prone” to brandishing weapons and had a “propensity” for doing so at the slightest provocation. However, such character is expressly prohibited under Evidence Code section 1101. Appellant was not entitled to present evidence of Perez’s aggressive behavior on a separate occasion in order to prove he acted aggressively in this case.

Beyond that, the court was justified in its concern that allowing the defense to present evidence regarding the incident would create a mini-trial within the trial. After all, defense counsel had subpoenaed Marco and four other witnesses to testify about the incident. And its admission might well have necessitated other witnesses. There’s no telling whether these witnesses would have painted a cohesive picture of the incident for the jury, or if the jury would have been left wondering what happened during the incident and what possible relevance it had to the issues presented in this case. All things considered, we do not believe the trial court abused its discretion or violated appellant’s fair trial rights by excluding the evidence from his trial.

Sufficiency of the Evidence

Appellant also contends the jury’s true findings on the gang allegations must be reversed because there is insufficient evidence that, by enlisting Torres to shoot Perez, he intended to benefit Torres’ gang. We disagree.

The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to “review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) In so doing, “[w]e presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (Ibid.) “The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [it].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.) The same standard applies when, as here, we are reviewing the sufficiency of the evidence to support a jury’s true finding on an enhancement allegation. (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)

With regard to the crimes of attempted voluntary manslaughter and shooting at an occupied vehicle, the jury found true gang allegations under Penal Code section 186.22, subdivision (b)(1). That provision provides for increased punishment if the defendant is convicted of a felony that is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist any criminal conduct by gang members[.]” Appellant does not dispute the shooting benefited Torres’ gang, West Treces. However, he insists there is a dearth of evidence to support the conclusion that, as a member of the Compton 132nd gang, he specifically intended to promote, further, or assist criminal conduct by members of West Treces.

In so arguing, appellant makes much of the fact he and Torres belonged to different gangs. However, that circumstance did not preclude a true finding on the gang allegation. (People v. Garcia (2016) 244 Cal.App.4th 1349 1369.) In fact, as our Supreme Court explained in Albillar, “The enhancement set forth in section 186.22(b)(1) does not . . . depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.” (Albillar, supra, 51 Cal.4th at pp. 67-68.) Thus, “if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Id. at p. 68; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”].)

After their initial dispute with Perez at the strip mall, appellant and his cohort Martinez ran to appellant’s neighborhood and recruited Torres and another member of West Treces (Ramos) to help them deal with the situation. They also enlisted the aid of their fellow gang member Gifford, so all told, there were three members of Compton 132nd and two members of West Treces blocking the alley when Perez appeared on the scene. Working as a cohesive unit, the group taunted Perez and advanced on him after he said he did not want to fight. And it was appellant who directed Torres to shoot Perez and took possession of the gun after the shooting. Taken together, this constitutes substantial evidence appellant carried out the shooting with members of a criminal street gang, i.e., West Treces. The jury could reasonably infer he specifically intended to promote, further, or assist criminal conduct by members of that gang.

Alleged Instructional Error

Next, appellant claims we must reverse his conviction for shooting at an occupied vehicle because the trial court failed to instruct the jury on the lesser included offense of discharging a firearm with gross negligence. The claim is not well taken.

Appellant was convicted of shooting at an occupied vehicle pursuant to section 246. Under that section, any person who maliciously and willfully discharges a firearm at an occupied motor vehicle is guilty of a felony. In comparison, the crime of grossly negligent discharge of a firearm is punishable as either a felony or a misdemeanor and occurs when a person “willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person[.]” (§ 246.3, subd. (a).)

In People v. Ramirez (2009) 45 Cal.4th 980, the California Supreme Court determined that “section 246.3(a) is a necessarily included lesser offense of section 246. Both offenses require that the defendant willfully fire a gun. Although the mens rea requirements are somewhat differently described, both are general intent crimes. . . . The only other difference between the two, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an [occupied vehicle] or other specified object be within the defendant’s firing range. All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246.” (Id. at p. 990.)

Nevertheless, that does not mean the trial court was remiss for failing to instruct the jury on the offense of discharging a firearm with gross negligence under section 246.3. “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense[.]” (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Rather, such instructions are only required when there is substantial evidence the defendant is guilty only of the lesser offense. (Ibid.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid.)

Here, the crucial issue separating the charged offense under section 246 from the lesser included offense under section 246.3 was whether Perez’s vehicle, i.e., the white Honda, was within Torres’ firing range at the time of the shooting. In appellant’s view, the evidence was inconclusive as to where Torres was aiming, as well as where Perez was located, when the shots were fired. Therefore, there was a legitimate question as to whether the Honda was in Torres’ firing range when the shooting occurred, and instructions on the lesser offense of grossly negligent discharge of a firearm were required. (See People v. Overman (2005) 126 Cal.App.4th 1344, 1362-1363 [trial court should have instructed on section 246.3 as lesser included offense of section 246 because there was conflicting evidence as to where the defendant was aiming when he fired his gun].)

However, according to witnesses who were in the area at the time of the shooting, Torres fired the gun after Perez obtained a rifle from the trunk of the Honda and was coming up along the side of that vehicle. Their testimony put Perez in close proximity to the Honda at the time of the shooting, and the evidence was undisputed that at least one of the shots struck Perez in the arm. In other words, the circumstances of the shooting were clearly such that the vehicle was within Torres’ firing range. There being no evidence to the contrary, the trial court was not required to instruct the jury on section 246.3 as a lesser included offense of section 246.

Presentence Credits

Lastly, appellant contends the trial court miscalculated his presentence credits. However, that is an issue that is best directed to the trial court in the first instance. Therefore, we remand for further proceedings.

As noted above, the trial court sentenced appellant to an aggregate prison term of 10 years, 6 months. Working on the assumption he would accrue postsentence credit at the rate of 50 percent against that term, appellant agreed to waive his presentence credits. However, it was subsequently discovered that appellant would only accrue postsentence credit at the rate of 15 percent. Therefore, the trial court allowed him to withdraw his waiver and awarded him 1,062 days of presentence credit. This award was intended to compensate appellant for the fact he would be receiving postsentence credit at a lower rate than he initially expected. However, that credit award is not reflected in the abstract of judgment.

Appellant contends his presentence credit award is incorrect because it will result in him serving a longer prison term than the trial court intended. He seeks an additional 518 days of presentence credit to make up for this discrepancy. Respondent challenges that figure and claims the trial court’s presentence credit award “adequately reflects a sentence desired by [the] trial court and contemplated by the parties.” However, respondent also admits “the matter should be remanded so the trial court can clarify the amount of [presentence] credits to be awarded.”

We agree a remand is in order. In fact, the law requires a claim for additional presentence credit to be tendered to the trial court in the first instance. (See § 1237.1; People v. Little (1993) 19 Cal.App.4th 449, 452.) We therefore offer no opinion on the merits of appellant’s claim.

DISPOSITION

The matter is remanded to permit the trial court to clarify the amount of presentence credits it intended to award appellant and to correct the abstract of judgment to reflect that award. In all other respects, the judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.