People v. Garcia

• Decision Date: 14 November 2008
• Docket Number: No. D049650.,D049650.
• Citation: 168 Cal.App.4th 261,85 Cal. Rptr. 3d 393
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PEDRO ALEXANDER ZEPEDA GARCIA et al., Defendants and Appellants.

168 Cal.App.4th 261

85 Cal. Rptr. 3d 393

THE PEOPLE, Plaintiff and Respondent, v. PEDRO ALEXANDER ZEPEDA GARCIA et al., Defendants and Appellants.

No. D049650.

Court of Appeals of California, Fourth District, Division One.

November 14, 2008.

As modified November 24, 2008.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant Geraldo Ojito.

Kerry L. Steigerwalt for Defendant and Appellant Pedro Alexander Zepeda Garcia.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillett and Gary W. Schons, Assistant Attorneys General, Gil Gonzalez, Lynne McGinnis and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'ROURKE, J.

A jury convicted Pedro Alexander Zepeda Garcia (also known as Teddy) and Geraldo Ojito (also known as Mist) of first degree murder (Pen. Code, § 187, subd. (a)). The jury found Garcia personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)), and that Ojito was vicariously armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The court sentenced Garcia to 50 years to life and Ojito to 25 years to life in state prison.

Ojito contends (1) there was no substantial evidence he aided and abetted a premeditated murder; (2) the court prejudicially erred by admitting irrelevant, inflammatory, and cumulative gang evidence; (3) he was denied due process of law by being jointly tried with Garcia; (4) the court prejudicially erred by admitting evidence concerning his arrest following a SWAT standoff; (5) the admission of two notes written by a cellmate to prove he attempted to intimidate witnesses violated the rules of evidence and his rights under the Sixth Amendment confrontation clause; (6) the cumulative impact of the trial errors deprived him of his Fourteenth Amendment due process right to a fair trial; and (7) a clerical error in the abstract of judgment must be corrected.

Garcia contends (1) the denial of his motion to sever his case from Ojito's deprived him of a fair trial; (2) the admission of gang evidence and the notes written by Ojito's cellmate deprived him of a fair trial; and (3) he was prejudiced by the admission of autopsy photographs of the victim. Both defendants also join in the other's arguments on appeal. We affirm.

FACTS

Ojito and Garcia were the founding members of a tagging crew that evolved into a gang known as TNS (Trust No Souls). Victim Manuel Barajas (also known as Bonk or Manny) was a member or former member of another tagging crew that had become a documented gang known as ALS (Another Logan Soldier).

On the afternoon of August 11, 2002, Barajas, his longtime friends Jesus Garcia (also known as Cheech) and Jesus Flores (also known as Bozo), and Flores's four-year-old son Javier stopped at the Gigante Market on 32d Street and National Avenue in southeast San Diego to buy carne asada for a picnic at the beach.¹ When they exited Cheech's truck in the parking lot, defendant Garcia approached them from across the street. Garcia and Barajas, who had fought previously, agreed to a one-on-one fight and walked into the alley behind the market.

A few minutes later, Cheech, Flores, and Javier walked toward the alley and met Barajas coming out of the alley. They saw Garcia on the ground trying to stand up. Barajas told them he had knocked out Garcia with one punch. The group then entered the market to buy their groceries for the beach. Flores pointed out that Barajas had blood on his shirt, so Barajas left the store and went home to change his shirt. Barajas lived with his sister and brother-in-law in a house on the 3200 block of Logan Avenue around the corner from the market.

After they bought their groceries, Cheech, Flores, and Javier got into Cheech's truck and Cheech drove toward Barajas's house. As they passed the alley between National Avenue and Logan Avenue to the north, they saw a group of four to eight Hispanic males run out of the alley toward the market. One of the males raised a hand and gestured or pointed toward the truck. Cheech drove past Barajas's house without stopping to pick up Barajas as planned because he did not want to bring trouble to the house. Instead, he turned right on 33d Street, drove one block south to National Avenue, turned right on National Avenue (westbound) and drove two blocks to 31st Street, turned right on 31st Street and then right from 31st Street back onto Logan Avenue (eastbound), and parked in the middle of the 3100 block of Logan Avenue. Cheech, Flores, and Javier then exited the truck and walked east on Logan toward Barajas's house. Flores was carrying a car club (steering wheel locking device) he took from the truck.

Meanwhile, a group of Hispanic males that included appellant Ojito's older brother Mario Ojito (also known as Casper)² confronted residents of Gary Reyes's home on the 3100 block of Logan, demanding to know where "Manny" was. Reyes told them there was no Manny living there and asked them to leave his property.

Some or all of the group, including Casper, then went to Barajas's house on the 3200 block of Logan and confronted Barajas's brother-in-law Angel Zepeda, who was in his front yard with his two-year-old daughter. Casper challenged Zepeda, saying, "What's up mother-fucker? You want some of this shit too, or what?" At some point, Barajas came out of the house onto the front porch and Ojito joined the group. Casper said to Barajas, "What's up fool? Come out here, punk. Come outside fool." A minute or two later, Garcia's cousin Favio Garcia (also known as Thief) rode up on a bicycle and joined the group. He yelled at Barajas, "You jumped my cousin, fool!" Barajas responded, "I didn't jump nobody, fool. I beat his ass." Thief then pulled a handgun from his midsection, pointed it at Barajas, and pulled the trigger, but the gun did not fire. He lowered the gun and looked at it, pointed it at Barajas and pulled the trigger a second time, and the gun again failed to fire.

The group left Zepeda's property and Zepeda took his daughter into the house and locked the front door, leaving Barajas outside. A few minutes later, Zepeda put his son and daughter in his car and drove eastbound on Logan Avenue. As he drove away, he saw Barajas standing on the corner of Logan and 32d Street with a neighbor.

When Cheech, Flores, and Javier exited Cheech's truck and started walking toward Barajas's house, they saw Barajas on the corner of 32d Street and Logan walking toward them. Barajas met them near the corner and they all began to walk westbound toward Cheech's truck while Barajas told them about the incident that had just occurred at his house.

Before they reached the truck, Garcia and Ojito confronted them on the sidewalk. Garcia was wearing a backpack on his chest and had his hand in the backpack. Flores brandished the car club he had taken from Cheech's truck and told Ojito and Garcia to "back the fuck up" because his son was with him. Moments later, a red car driven by Yovani Pineda stopped at the scene of the confrontation. Casper and Ojito's younger brother, Victor Rodriguez, immediately exited the car and joined Ojito and Garcia. Pineda also joined the group after pulling his car to the curb.

Pineda had been driving to Garcia's house to visit him after taking his girlfriend home when he saw Rodriguez and Casper on the sidewalk. They called out to him and waived him over, so he made a U-turn and stopped to pick them up. He knew Rodriguez but had never met Casper. Rodriguez told Pineda to pick up Garcia because Garcia had gotten into a fight and had been hit. Rodriguez then directed Pineda to the scene of the confrontation.

At the scene, Garcia was holding a white, bloodstained shirt over his right temporal, forehead area, and had a large lump on that area of his head. He appeared to be dazed and dizzy. Ojito, Casper, and Garcia accused Flores, Cheech, and Barajas of jumping Garcia, and Ojito asked what Garcia had been hit with.³ Flores, Cheech, and Barajas replied that nobody had jumped Garcia. Cheech and Flores told Garcia to "take an ass whooping like a man." Garcia responded "Fuck that shit, fuck that shit." He started to pull a gun out of his backpack and Cheech told him, "Put that thing away." He responded, "It's put away," but he kept his hand in the backpack.

Casper mainly confronted Flores, standing almost chest-to-chest in front of him. Flores attempted to put Javier in an adjacent fenced-in yard, but Casper prevented him from doing so. Flores told Casper, "Back the fuck up off me. Don't you see my son next to me?" Ojito who was standing next to Garcia, leaned toward Garcia and whispered something to him. Then Ojito and Garcia told Barajas he had "better run."⁴ Barajas started running westbound and Garcia took the handgun out of his backpack and fired it at Barajas. Barajas jumped over a fence into a yard and Garcia and Ojito ran after him. Garcia fired more shots and Barajas fell in the yard, got up and ran a few more steps, and then fell again.

Pineda, Garcia, and Ojito then ran to Pineda's car and got into the car, and Ojito told Pineda to drive. As Pineda drove away from the scene, Garcia gave the gun to Ojito. Garcia told Pineda to drive to a nearby Costco store to look for a telephone. When they did not find a telephone at the store, Pineda drove toward his house so Garcia and Ojito could use the telephone there.

Near Pineda's house, police officers in a patrol car made a U-turn and followed Pineda's car with their overhead lights activated. Pineda did not stop until he drove into his driveway because he did not have a license and did not want the police to take his car. Before Pineda stopped, Ojito announced he was going to run. When the car stopped, Ojito immediately jumped out and ran from the scene with the gun.

Police arrested Garcia and Pineda in front of Pineda's house. An officer who arrived to assist the first officers at the scene attempted to find Ojito by following the path he had taken. A...