People v. Lizarraga
| Decision Date | 07 December 2015 |
| Docket Number | B258261 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESUS LIZARRAGA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),'s 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA130084)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed as modified.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant, Jesus Lizarraga, of second degree murder. (Pen. Code, § 187, subd. (a)1.) The jury found defendant personally used a firearm and proximately caused the victim's death. (§ 12022.53, subds. (b)-(d).) The jury found not true a gang enhancement allegation under section 186.22, subdivision (b)(1)(C). The trial court sentenced defendant to 40 years to life in state prison. We modify the judgment and affirm it as modified.
On July 22, 2013, defendant, a 17-year-old gang member, shot and killed Leonel Beltran, a rival gang member. Defendant was in rival gang territory visiting his mother. Defendant was carrying a loaded weapon. Defendant's gang affiliation was tattooed on his face, a sign of his commitment to his gang. Defendant was on the way to his mother's house prior to the shooting. A rival gang member tried to run defendant over with a truck. The shooting occurred shortly after defendant left his mother's home.
Defendant and a fellow gang member, Jessica Elizarrus, were near the intersection of Main Street and Imperial Highway. The intersection was an area disputed by defendant's gang and two others. There was intense rivalry among the gangs. Mr. Beltran, who was in a car, approached defendant from behind. According to defendant, someone in the car disrespected and threatened him by saying, "Fuck [defendant's gang]." Defendant walked towards the car which was behind him. Defendant took out his gun. Defendant shot Mr. Beltran three times. The bullets pierced Mr. Beltran's head and upper torso. His wounds were consistent with having been shot once from the front and twice from behind. Mr. Beltran's vehicle proceeded into a service station andcrashed into a telephone pole. Mr. Beltran was unarmed. The jury viewed a surveillance tape that captured the incident, albeit from a distance.
Defendant discussed the shooting with two former gang members, Oscar Tovar and Mark Torres. Detectives Manuel Castaneda and Nathan Kouri interviewed Mr. Tovar on August 7, 2013, two weeks after Mr. Beltran was killed. Defendant and Mr. Tovar had grown up together. Mr. Tovar referred to defendant as a "cousin." Mr. Tovar related the following. Rival gang members had tried to recruit defendant when he was young. But Mr. Tovar had instead recruited defendant to join a different gang. Mr. Tovar was formerly a member of that gang. The rival gang was out to get defendant. The rival gang's motive was that defendant had joined Mr. Tovar's gang. Mr. Tovar told the detectives there was a shooting and defendant "got" a rival gang member. Two or three days after the incident, defendant telephoned Mr. Tovar. Defendant said: In this post-shooting conversation, defendant said: a car crept up next to him; someone said, "Hey where are you from"; and he "lit 'em up." When interviewed by detectives, Mr. Tovar described part of post-shooting conversation about the killing, "[Defendant] got in the right with . . . he hit him . . . he didn't even let him stand up, he got him in the car."
Mr. Tovar and Mr. Torres both testified, reluctantly, for the prosecution. Mr. Tovar was 21 at the time of trial. Mr. Tovar's trial testimony was consistent with what he had earlier told the detectives. At trial, however, Mr. Tovar added two additional facts. Prior to the shooting, defendant went to his mother's house. On the way, a rival gang member tried to run defendant down with a truck. Further, when defendant left his mother's house, he was angry.
As noted, Mr. Torres also testified on behalf of the prosecution. Mr. Torres spoke to defendant after the shooting. Defendant said he had "got one of them" using a derogatory phrase for the rival gang. Mr. Torres testified: Defendant told Mr. Torres someone in the car said, "Fuck [defendant's gang]." In response, defendant pulled out his gun and fired three times. Defendant said he fired because he thought they were going to "light him up." Defendant knew Mr. Beltran was from the rival gang.
Defendant's mother, Maria Sandoval, also testified at trial. Ms. Sandoval said defendant had grown up, off and on, in the rival gang's territory. Moreover, Ms Sandoval had lived with a rival gang member when defendant was young. Ms. Sandoval further testified the rival gang members knew to leave defendant alone because he was her son.
Over defense objection, the prosecution presented evidence that on October 4, 2010, defendant, then 14 years old, was arrested for possessing a loaded .25-caliber semiautomatic handgun. This arrest occurred a few blocks from the scene of the present shooting. Defendant told law enforcement officers he had the gun because he was looking for rival gang members; they had crossed out his gang's graffiti.
Division One of the Court of Appeal for this appellate district summarized the applicable law in People v. Sedillo (2015) 235 Cal.App.4th 1037, 1059: ' (Accord, People v. Leon (2015) 61 Cal.4th 569, 597, 599; People v. Scott (2015) 61 Cal.4th 363, 398-400.)
There was no abuse of discretion. Defendant's intent was the central issue in this case. The prosecution argued Mr. Beltran was shot because he was a rival gang member and not because of any need for self-defense. The defense asserted defendant fired his weapon in response to a verbal threat, which led him to believe he was about to be shot. The prior offense and current crime were similar. Both occurred in the same general neighborhood, in or near rival gang territory. In both cases defendant, a gang member, was armed with a loaded weapon. Both cases involved an intended or actual confrontation with a rival gang member. The trial court could reasonably conclude evidence of defendant's prior uncharged offense tended to show: his loyalty to his gang; his enmity toward rival gang members; his willingness to arm himself in anticipation of a confrontation with a rival gang member; the intent with which Mr. Beltran was shot; and that he did not act in real or perceived self-defense. (See People v. Demetrulias, 39 Cal.4th 1, 14; People v. Sedillo, supra, 235 Cal.App.4th at pp. 1059-1060.)
Further, as the trial court impliedly found, the prejudicial effect of admitting the prior uncharged offense evidence did not substantially outweigh its probative value. (Evid. Code, § 352; People v. Ewodt, supra, 7 Cal.4th at p. 404.) The jury knew defendant was a gang member. Defendant's gang affiliation was tattooed on his face. Defendant had previously possessed a loaded weapon while seeking out rival gang members. This prior offense was sufficiently similar to and not more inflammatory than the charged crime. Furthermore, the trial court instructed the jury it could consider theevidence only as to defendant's motive and intent. The trial court also instructed the jury evidence of gang activity could not be considered on the issue of defendant's character or disposition to commit crime. We presume the jury followed those instructions. (People v. Pearson (2013) 56 Cal.4th 393, 477; People v. Aranda (2012) 55 Cal.4th 342, 387-388.) There was no danger of undue prejudice, of confusing the issues or misleading the jury.
Defendant raises two instructional error contentions. We review defendant's...
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