People v. Moreno CA2/5 ( 2014 )

Filed 9/29/14 P. v. Moreno CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B248088
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA095444)
v.
STEVE MORENO et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Bruce F. Marrs, Judge. Affirmed.
David Arredondo, under appointment by the Court of Appeal, for Defendant and
Appellant Steve Moreno.
Jose Romero, under appointment by the Court of Appeal, for Defendant and
Appellant Luis Moreno.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and David
Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendants and appellants Steve Moreno and Luis Moreno1 (defendants) were
convicted of four counts of attempted premeditated and deliberate murder (Pen. Code, §§
187, subd. (a), and 6642), four counts of assault with a firearm (§ 245, subd. (a)(2)), and
one count of shooting at an occupied vehicle (§ 246). On appeal, defendants contend that
there is insufficient evidence that Steve shot the gun and Luis was the driver of the
vehicle; the trial court erred in allowing the prosecutor’s expert witness to testify; and the
trial court erred in admitting a bullet fragment retrieved shortly before trial. We affirm
the judgment.
BACKGROUND
A. Factual Background
1. Prosecution Evidence
Luis is Leticia Mejia’s boyfriend of eight years, and together they have two
children. In April or May 2011, Luis was paroled from a previous conviction. In June
2011 Luis and Mejia lived in separate houses located on the same property in El Monte,
California. Luis resided in the same house as his brother, Steve. Mejia has known Steve
since about 2005, and she described Luis and Steve as having a close relationship.
In October 2005 Rachael Ochoa purchased her silver 2001 BMW X5 as a used
vehicle; she received one key to operate it. On June 23, 2011, her vehicle was stolen.
1
Because defendants have the same surname, we refer to them individually by their
first names.
2
All statutory citations are to the Penal Code unless otherwise noted.
2
At about 1:30 a.m. on June 25, 2011, Adonis Galvan, his brother Alexsi Galvan,3
and a friend, Cesar Viramontes, drove home from a party in Viramontes’s Lexus SUV.
While they were stopped at a red light heading north on Durfee Avenue at the
intersection with Garvey Avenue, a silver BMW SUV pulled up next to them. Adonis
testified that Luis was driving the BMW and Steve was a passenger.
Steve made hand gestures and was moving his mouth, but Adonis could not hear
the words because the windows in the Lexus were rolled up. Viramontes and Alexsi
described Steve’s hand signals as gang signs for the El Monte Flores gang. Viramontes
understood the intent of the hand gestures was to challenge him to a fight; Viramontes
had lived in El Monte all his life and had seen the gang signs Steve made many times in
school.
Adonis and Viramontes heard a gunshot. Adonis turned and saw Steve fire a
second gunshot round. Viramontes said, “We have to go,” and drove through the red
light honking his horn. The gun shots continued as they drove under the Interstate 10
overpass. A bullet entered the Lexus’s rear window, grazed Alexsi’s head, ricocheted
through Adonis’s headrest, and ricocheted again off his door panel, and then slowed
enough for Adonis to catch it. After the Lexus drove under the Interstate 10 overpass,
Steve stopped firing his gun, and the BMW turned onto Ferris Road. Alexsi testified that
he believed a total of six gun shots were discharged.
Alexsi was bleeding “a lot,” and Viramontes drove his vehicle to the hospital.
Once at the hospital, Adonis called the police. Bullet fragments were cleaned out of
Alexsi’s wound, and his wound required stitches and staples. El Monte Police
Department Officer Jesus Rojas responded to the hospital, and Adonis gave him the
bullet that had hit Alexsi.
Shortly after the shooting incident, Officer Rojas found the silver BMW parked
about 250 feet from where defendants resided. When Officer Rojas performed a “records
check” using the BMW’s vehicle identification number (VIN), he discovered that the
3
Because Adonis and Alexsi have the same surname, we refer to them by their first
names.
3
BMW had been stolen. He found a single bullet hole in the front door pillar of the BMW
that he believed was possibly caused by the firing a gun from the inside of the vehicle.
There was a dent and discoloration noticeable on the outside of the car that was
correspondingly caused by the same bullet. El Monte Police Department Detective
Adam Girgle examined the vehicle and did not find any fingerprints, bodily oils, or
“smudge marks” on it, which fact he found to be “odd.”
In photographic lineups, Adonis and Alexsi identified Luis as the driver of the
BMW and Steve as the shooter. In a photographic lineup, Viramontes identified Luis as
the driver, and also stated that he was “50 percent [certain] that’s the guy who shot.”
On July 26, 2011, Luis drove Mejia’s vehicle into a gas station; Mejia was a
passenger. El Monte Police Department Officer Bryan Tromp entered the gas station
with his patrol vehicle, and shined his spotlight on Mejia’s car, causing Luis to run away.
officer Tromp searched Mejia’s vehicle, and found under the driver’s seat a set of keys,
the majority of which were “filed” keys—keys that have been “filed down so [one] could
try to steal cars with them.”
Adrian Garcia was a shop foreman for BMW of Monrovia. He was involved in
the service department’s daily operations, was in charge of about 30 technicians, and has
worked for BMW for over 12 years. He testified that when a person purchases a new
BMW vehicle, like Ochoa’s vehicle, they are given four keys—two master keys that
operate the vehicle, and two valet keys. One of the valet keys will only unlock the
vehicle, and the other valet key will operate the vehicle. The keys that operate the
vehicle have a computer chip in them, and over the objection by Luis’s counsel, Garcia
opined that those keys cannot be duplicated except by BMW North America in New
Jersey. Garcia contacted BMW North America by telephone and determined that it did
not create any duplicate keys for Ochoa’s vehicle.
Detective Girgle gave one of the keys obtained from the search of Mejia’s vehicle
to Garcia—a valet key that unlocks and starts a vehicle—and asked Garcia whether he
could determine the vehicle that the key operated. Garcia placed the key into a “BMW
key reader” that is connected to a computer and a corresponding VIN was displayed. The
4
VIN indicated that the key operates a silver colored 2001 BMW X-5. Garcia testified
that he was “positive” that one of those keys found in Mejia’s vehicle operated Ochoa’s
car. Ochoa testified that that key was not the key she had received when she bought the
BMW. Garcia does not know how records are maintained by BMW of North America in
New Jersey. Garcia printed the BMW key reader information and gave it to Detective
Girgle.
In August 2011, Adonis was driving with friends north on Durfee Avenue near
Ferris Road when he saw Luis walking in the same direction by himself. Adonis’s friend
advised him to call the police, but Adonis thought it was too late because Luis would be
gone by the time the police arrived. Adonis later told Detective Girgle that he saw Luis.
On February 8, 2012, Mejia was driving in Baldwin Hills with Luis as a passenger
when she was pulled over by the police. Luis ran but was apprehended by Detective Pete
Lopez. Mejia was handcuffed and taken to a police station. Steve was also ultimately
arrested.
El Monte Police Department Sergeant Peter Rasic testified that he interviewed
Mejia at the police station. Mejia told him that it was Luis who ran from the car, and
Luis was a member of the El Monte Flores gang and had engaged in criminal activity.
Mejia testified that she did not recall telling police that Luis was a gang member and
criminal. Mejia still loved Luis, and she told the police that she “care[d] a great deal” for
him.
At trial, Adonis and Viramontes identified Steve as the shooter who shot at
Viramontes’s vehicle. Adonis identified Luis as the driver of the BMW. At trial, Alexsi
identified Steve as the driver of the BMW and Luis the person who shot at Viramontes’s
vehicle, but he stated that defendants’ appearance had changed since the date of the
shooting incident—Luis grew his hair, and Steve cut his hair.
Two weeks before trial Adonis found a bullet fragment lodged in the back seat of
Viramontes’s Lexus. He gave it to Detective Girgle in the courthouse.
Detective Girgle testified as the prosecution’s gang expert. He stated that the El
Monte Flores was a criminal gang that operated primarily in the cities of El Monte and
5
South El Monte, had over 1,000 members, and its primary activities included stealing
cars, residential burglaries, armed assault and robbery, and murder. He opined that
defendants were members of the El Monte Flores gang, and the shootings were done for
the gang’s benefit.
2. Defendants’ Evidence
Emily Penalber testified that in the evening of June 24, 2011, Steve and Luis
attended a graduation party in El Monte at Penalber’s invitation. Luis and Steve left the
party at about 3:00 a.m. on June 25, 2011.
Tatiana Rodriguez testified that in the early morning hours of June 25, 2011, she
was working at the corner of Garvey Avenue and Durfee Avenue. Through a glass
window she saw two cars—a sedan and an SUV—pass by heading north on Durfee
Avenue. She had an unobstructed view of the vehicles, but the window that she was
looking through was foggy. She did not see the color of the vehicles because it was dark,
and she did not see the vehicles stopped at a red light. She saw two flashes of light come
from inside the SUV.
Officer Roger Sardina testified that in the early morning hours of June 25, 2011,
Adonis told him that the shots came from a “[n]ewer model” BMW SUV. Adonis also
told him that he would not be able to identify the two people who were in that vehicle if
he saw them again.
Dr. Kathy Pezdek, defendants’ cognitive science expert witness, testified about
several factors that affect an eyewitnesses’ memory and identification, including, inter
alia, the witness distance from and lighting associated with the perceived event; that
eyewitnesses overestimate how long they spent looking at something, particularly when
under stress; the effect of the witnesses being distracted; the effect of the witnesses’
stress; problems associated with cross-race identification; the effect of a delay in time
from the observation to the identification; the absence of any correlation between degree
of certainty and degree of accuracy; and the tendency of eyewitnesses to confuse people
with objects. Based on several hypothetical facts given to her by Steve’s counsel, she
6
opined that it was “extremely unlikely” that an eyewitness in Viramontes’s vehicle could
identify the two people in the BMW.
B. Procedural Background
The District Attorney of Los Angeles County filed a second consolidated amended
information (information) charging defendants with four counts of attempted willful,
deliberate, and premeditated murder in violation of sections 187, subdivision (a), and 664
[counts 1, 4, 6 and 8]), four counts of assault with a firearm in violation of section 245,
subdivision (a)(2) [counts 2, 5, 7 and 9], and one count of shooting at an occupied motor
vehicle in violation of section 246 [count 3]. The information alleged as to counts 2 and
3 that Steve personally inflicted great bodily injury in violation of section 12022.7,
subdivision (a), and did so discharging a firearm from a motor vehicle in violation of
section 12022.55; as to counts 5, 7, and 9 that he personally used a firearm in violation of
section 12022.5; and as to counts 1, 3, 4, 6 and 8 that he personally used a firearm to
cause great bodily injury in violation of section 12022.53, subdivisions (b)-(d). As to
both defendants, the information alleged as to counts 1, 3, 4, 6, and 8 that a principal
personally used a firearm to cause great bodily injury in violation of section 12022.53,
subds. (b)-(e). The information alleged as to all counts that defendants committed the
crimes for the benefit of a street gang in violation of section 186.22, subdivisions (b)(1)
and (4), and they had each served a prior prison term as defined by section 667.5,
subdivision (b).
Following trial, the jury found defendants guilty on all counts, and found that the
special allegations were true. Steve admitted the prior prison term allegation. The trial
court dismissed the prior prison term as to Luis.
The trial court sentenced Steve to state prison for a term of 160 years to life,
consisting of 15 years to life each on counts 1, 4, 6, and 8 with the gang enhancement,
plus 25 years to life on each of those counts for the personal use of a firearm great bodily
injury enhancement. He was sentenced concurrently to one year in state prison for the
7
prior prison term. The trial court stayed sentence on counts 2, 3, 5, 7, and 9, and on all
other firearm enhancements.
The trial court sentenced Luis to state prison for four life terms plus 100 years to
life in prison consisting of a life term each on counts 1, 4, 6, and 8, plus 25 years to life
on each of those counts for the principal use of a firearm great bodily injury plus gang
enhancements. The trial court stayed sentence on counts 2, 3, 5, 7, and 9, all other
firearm enhancements.
The trial court awarded defendants custody credit, and ordered them to pay
various fees, fines and penalties. Defendants filed timely their respective notices of
appeal.
DISCUSSION
A. Substantial Evidence
Defendants contend that the evidence was insufficient to show that Steve shot the
gun and Luis drove the vehicle. We disagree.
1. Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46
Cal. 4th 680, 701.) “We must presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the evidence. [Citation.]”
(People v. Medina (2009) 46 Cal. 4th 913, 919.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support’” the jury’s verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal. 4th 327, 357.) “Substantial evidence includes circumstantial evidence and
8
the reasonable inferences flowing therefrom.” (People v. Ugalino (2009) 174
Cal. App. 4th 1060, 1064.) “We ‘must accept logical inferences that the jury might have
drawn from the circumstantial evidence. [Citation.]’ [Citation.]” (People v. Zamudio,
supra, 43 Cal.4th at pp. 357-358.) In determining whether substantial evidence supports
a conviction, “we do not reweigh the evidence, resolve conflicts in the evidence, draw
inferences contrary to the verdict, or reevaluate the credibility of witnesses.” (People v.
Little (2004) 115 Cal. App. 4th 766, 771, citing People v. Jones (1990) 51 Cal. 3d 294,
314.)
2. Analysis
There is substantial evidence that Steve shot the gun and Luis drove the vehicle.
Adonis and Alexsi identified Luis as the driver of the BMW and Steve as the shooter of
the gun in photographic lineups. Viramontes identified Steve as the shooter at trial. At
trial, Adonis again identified Luis as the driver of the BMW and Steve as the shooter.
Defendants contend that evidence is insufficient to show that Steve was the
shooter and Luis drove the vehicle because: (1) Officer Sardina testified that,
immediately after the shooting, Adonis told him that he could not identify the two people
who were in that vehicle if he had seem them again; (2) Viramontes identified Luis in a
photographic lineup but said that he was only “50 percent [certain] that’s the guy who
shot;” and (3) at trial, Alexsi identified Steve as the driver of the BMW and Luis shot the
gun. In addition, defendants introduced evidence as to unreliability of eyewitness
evidence.
Any lack of certainty of the identity of defendants by the witnesses goes to the
weight, not the sufficiency, of the evidence. “The strength or weakness of the
identification, the incompatibility of and discrepancies in the testimony, if there were
any, the uncertainty of recollection, and the qualification of identity and lack of
positiveness in testimony are matters which go to the weight of the evidence and the
credibility of the witnesses, and are for the observation and consideration, and directed
solely to the attention of the jury in the first instance . . . . [Citation.] The general rule,
9
then, is that it is not essential that a witness be free from doubt as to one’s identity. He
may testify that in his belief, opinion or judgment the accused is the person who
perpetrated the crime, and the want of positiveness goes only to the weight of the
testimony. [Citations.]” (People v. Lindsay (1964) 227 Cal. App. 2d 482, 493-494;
People v. Edwards (1981) 126 Cal. App. 3d 447, 457 [“The weight of the identification
evidence [regarding a car] is for the trier of fact”].) A witnesses “failure to make a
positive identification of appellant based on photographic displays merely goes to the
weight of the evidence, not its sufficiency.” (People v. Prado (1982) 130 Cal. App. 3d
669, 674.) “Weaknesses and inconsistencies in eyewitness testimony are matters solely
for the jury to evaluate. [Citation.]” (People v. Allen (1985) 165 Cal. App. 3d 616, 623,
overruled on other grounds in People v. Berry (1993) 17 Cal. App. 4th 332, 338-339; see
People v. Hill (1998) 17 Cal. 4th 800, 849.)
Although in a photographic lineup Viramontes identified Luis as the driver, and
that he was “50 percent [certain] that’s the guy who shot,” as noted above, at trial he
identified Steve as the shooter. And although Alexsi identified Steve as the driver of the
BMW and Luis as the shooter at trial, he stated that defendants’ appearance had changed
since the date of the shooting incident.
Even the testimony of one witness is sufficient to prove any fact. (Evid. Code, §
411; People v. Young (2005) 34 Cal. 4th 1149, 1181 [The testimony of a single witness is
sufficient to support a conviction].) In essence, defendants ask that we reweigh the
evidence. This we cannot do. (People v. Livingston (2012) 53 Cal. 4th 1145, 1170 [“‘“A
reviewing court neither reweighs evidence nor reevaluates a witness’s credibility”’”].)
B. Expert Witness Testimony
Defendants contend that the trial court abused its discretion in allowing Garcia to
testify as an expert witness that (1) based on his telephone conversation with BMW North
America in New Jersey, only three keys existed that operate Ochoa’s vehicle; and (2)
based on a computer search of BMW’s records, a key obtained from the search of Mejia’s
vehicle operated Ochoa’s vehicle. We disagree.
10
1. Background Facts
As noted, a key that operated the stolen BMW was found in Mejia’s vehicle.4
Before Garcia testified, Luis’s counsel challenged the prosecutor’s request to call Garcia
to testify about the records in BMW’s key database because that testimony would be
based on inadmissible hearsay. The prosecutor stated that Garcia’s testimony would be
admissible under Evidence Code section 1271’s business record exception. The
prosecutor argued that Garcia was the “shop foreman” for BMW of Monrovia, and in
order for him and his crew to work on the vehicles, they had to have access to BMW’s
computer database. Garcia sometimes determines whether additional keys have been
made for a particular vehicle by contacting BMW of North America by telephone.
Garcia contacted BMW of North America by telephone and determined that no additional
keys have been made for Ochoa’s BMW. The information obtained by Garcia was
“reliable and trustworthy” because of the size of BMW of North America, and without it
having established practices for keeping records, its business of serving and repairing
BMW vehicles would be negatively impacted. The trial court stated also that BMW of
North America is required under federal law to maintain “a whole pile of records.”
Luis’s counsel stated that the prosecutor offered no evidence that the records were
made near the time of the event, and that Garcia admitted to “having seen a lag-time” of
up to one month before the information was entered. Additionally, Luis’s counsel stated
that Garcia was not a qualified witness under Evidence Code section 1271 because he
was not the custodian of records for BMW of North America. Luis’s counsel also argued
that the prosecution has not provided a citation reference to the federal law concerning
maintaining records regarding the keys to the vehicles with which BMW of North
America was purportedly in compliance, and there is no evidence that BMW of North
America was actually in compliance with that federal law.
4
Inexplicably, Ochoa, the owner of the stolen BMW testified that she did not
receive that key when she bought the BMW. We could find no explanation how
defendants might have a key that operated Ochoa’s car when she did not receive that key.
11
The trial court responded that one month is still near the time of the event in this
case; regardless of whether the business records exception applies, Garcia qualified as an
expert witness under Evidence Code section 801; and that hearsay was therefore
admissible. The trial court said, “We’re talking about subjects that are beyond the
common experience such that the opinion of the expert would assist the trier of fact. [¶]
Now, there’s no way that the average citizen is aware of how automobile keys in the
modern generation function[,] are kept, how they actually work in conjunction with other
well-known security items such as I.D. numbers, et cetera. [¶] And as an expert, he’s
certainly allowed to consider hearsay in forming an opinion that there are no other keys
out there according to his understanding of the procedure and the records.” Defendants’
counsel noted their objections.
2. Analysis
Evidence Code section 720, subdivision (a) provides, “A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his testimony relates.”
“Whether a person qualifies as an expert in a particular case . . . depends upon the facts of
the case and the witness’s qualifications.” (People v. Bloyd (1987) 43 Cal. 3d 333, 357.)
“[T]he qualifications of an expert must be related to the particular subject upon which he
is giving expert testimony.” (People v. Hogan (1982) 31 Cal. 3d 815, 852, disapproved
on other grounds in People v. Cooper (1991) 53 Cal. 3d 771, 836.) An expert may rely
upon hearsay and other inadmissible matter in forming an opinion. (Evid. Code, § 801,
subd. (b).) “[T]he determinative issue in each case is whether the witness has sufficient
skill or experience in the field so his testimony would be likely to assist the jury in the
search for truth.” (Alef v. Alta Bates Hospital (1992) 5 Cal. App. 4th 208, 219.)
“The qualification of expert witnesses, including foundational requirements, rests
in the sound discretion of the trial court. [Citations.] That discretion is necessarily
broad: ‘The competency of an expert “is in every case a relative one, i.e. relative to the
12
topic about which the person is asked to make his statement.” [Citation.]’ [Citation.]”
(People v. Ramos (1997) 15 Cal. 4th 1133, 1175.)
Garcia was a shop foreman for BMW of Monrovia, and therefore was involved in
the service department’s daily operations. He testified that when a person purchases a
new BMW, as Ochoa’s vehicle, they are provided with four keys, three of which operate
the vehicle. He also testified that because the keys that operate the vehicle have a
computer chip in them, those keys cannot be duplicated except by BMW North America
in New Jersey. As the shop foreman, it is reasonable to conclude that these are matters
within his special knowledge, skill, experience, training, or education. (Evid. Code, §
720, subd. (a).)
Garcia testified that he contacted BMW North America by telephone and
determined that it did not create any duplicate keys for Ochoa’s vehicle. He also testified
that based on a computer search of BMW’s records, a key obtained from the search of
Mejia’s vehicle operated Ochoa’s vehicle. The statements made by the representative of
BMW North America during the telephone conversation, and BMW’s records concerning
the keys it produced that operate a particular vehicle, are hearsay evidence—out of court
statements offered to prove the truth of the matter asserted. (Evid. Code, § 1200.) As
noted above, however, an expert may rely on hearsay. (Evid. Code, § 801, subd. (b).)
Defendants contend that the trial court abused its discretion in admitting Garcia’s
testimony regarding the number of keys that are provided upon the purchase of a new
BMW. Defendants argue that this testimony does not require any special training or
experience because anyone who buys a new vehicle knows this information. Defendants
presume, without any supporting evidence, that the jury members have all purchased a
new BMW. Garcia’s testimony regarding the number of keys that are provided upon the
purchase of a new BMW “would be likely to assist the jury in the search for truth.” (Alef
v. Alta Bates Hospital, supra, 5 Cal.App.4th at p. 219.)
Defendants argue that Garcia’s testimony “is particularly damaging because it
suggests and implies that the subject BMW here [was] the vehicle that [was] used in the
crime.” Even if the trial court erred in admitting Garcia’s expert testimony, any error was
13
harmless under the standard of either People v. Watson (1956) 46 Cal. 2d 818, 836-837
[more favorable outcome for defendant reasonably probable absent error], or Chapman v.
California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]. Regardless of
whether the BMW was used in the shootings, several witnesses identified Steve and Luis
as the occupants of a vehicle, and there was evidence that the shots came from that
vehicle.
C. Admission of Evidence
Defendants contend that the trial court erred in admitting into evidence the bullet
fragment retrieved by Adonis shortly before trial because they could not test it to
determine whether it was fired from the BMW, and whether it was fired from a semi-
automatic handgun, as opposed to a revolver. The trial court did not err.
1. Applicable Law and Standard of Review
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. (People v. Guerra (2006) 37 Cal. 4th 1067, 1140, overruled on other grounds
as stated in People v. Rundle (2008) 43 Cal. 4th 76, 151; People v. Alvarez (1996) 14
Cal. 4th 155, 203.) “A trial court abuses its discretion when its ruling ‘fall[s] “outside the
bounds of reason.”’ [Citations.]” (People v. Waidla (2000) 22 Cal. 4th 690, 714.) If the
erroneous admission “implicates defendant’s federal constitutional rights to due process
and concerns the fundamental fairness of his trial, we will apply the de novo standard of
review.” (People v. Albarran (2007) 149 Cal. App. 4th 214, 225, fn. 7.)
2. Background Facts
On March 5, 2013, the prosecutor and defendants’ counsel discussed with the trial
court the prosecutor’s intention to question Adonis about a bullet fragment that he found.
The prosecutor told the trial court that earlier that day (during trial) Adonis gave
Detective Girgle a bullet fragment that he had recovered from Viramontes’s vehicle two
weeks earlier. Detective Girgle gave the fragment to the prosecutor, who in turn showed
14
it to defense counsel. The trial court stated that it found the fragment relevant, but that it
was not “a major part of the case” because no serious challenge had been made that a
shooting had occurred.
Steve’s counsel told the trial court that he was skeptical that Adonis actually found
the bullet fragment after the vehicle had been searched by police. Luis’s counsel
questioned who would identify what Adonis found as a bullet fragment. The prosecutor
responded that Adonis could identify it as a bullet fragment based on the bullet that he
had caught the night of the shooting.
Steve’s counsel argued that Adonis could not state that the bullet and the bullet
fragment came from the same weapon; that requires a ballistics comparison that should
be performed by the police. The trial court found that such a comparison would be
irrelevant because the weapon was never recovered. Counsel for both defendants argued
that they were unable to perform tests and an investigation to determine if the bullet
fragment was from the shooting incident at issue in this case, or from a different incident.
In response the trial court stated, “It would appear that the objections would go more to
weight than to admissibility, if the witness recognizes this as something he found and can
tell us where he found it. And cross examination of [Viramontes] would certainly be
reasonable as to the number of times [Viramontes]’s car has been shot up. In which case,
by inference it would be possible to be another shooting as opposed to this one. [¶] If
it’s only been one, you can certainly argue it was a long time [sic] and couldn’t possibly
be related. That would be a jury decision.” The trial court stated also that Detective
Girgle could identify it as a bullet fragment.
3. Analysis
The Attorney General argues that to the extent that defendants are contending that
their counsel should have been granted a mid-trial continuance to conduct tests on the
newly-recovered bullet fragment, they forfeited that contention. We agree with the
Attorney General; defendants’ counsel never made a request for such a continuance. A
party may not raise an argument on appeal that he or she did not raise before the trial
15
court. (People v. Riccardi (2012) 54 Cal. 4th 758, 810 [“[w]e discern in the record no
defense request for a continuance to allow further evaluation of the . . . tape, and hence
defendant has forfeited this claim”]; People v. Clark (1993) 5 Cal. 4th 950, 988, fn. 13,
[“[w]hen a party does not raise an argument at trial, he may not do so on appeal”],
disapproved on other grounds as stated in People v. Doolin (2009) 45 Cal. 4th 390, 421,
fn. 22.)
Even if defendants did not forfeit their contentions on appeal, defendants did not
establish that the trial court erred. “All intendments and presumptions are indulged to
support [the judgment or order] on matters as to which the record is silent, and error must
be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.)
Regarding whether the bullet fragment was fired from the BMW, there is no
evidence in the record that the bullet from which the fragment came was the bullet that
was fired into the pillar of that vehicle, particularly because there is no evidence that the
bullet ever left the vehicle. The record does not reflect that there was a hole through
which the bullet would exit the vehicle; there was evidence only of a corresponding dent.
There also is no evidence that, given the trajectory of the bullet, the bullet would have
penetrated through the pillar of the BMW into the back seat of Viramontes’s vehicle—
where Adonis found the bullet fragment.
In addition, Adonis found a bullet fragment, not a complete bullet, lodged in the
back seat of Viramontes’s vehicle. Indeed, the trial court described the bullet fragment as
looking “like the bottom of a fully copper jacketed bullet . . . .” There is no evidence in
the record that the bullet fragment could have been tested to determine whether it was
shot from the BMW.
Regarding the testing of the bullet fragment to determine whether it was shot from
a revolver or semi-automatic pistol, Alexsi testified that he could not remember whether a
semi-automatic gun or a revolver was used during the shooting incident. He testified,
however, during the preliminary hearing that “it looked [to him] like a revolver” was
used in shootings. Defendants therefore contend that the trial court erred in introducing
into evidence the bullet fragment because they could not test it to determine whether it
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was fired from a semi-automatic handgun, as opposed to a revolver. As with the
feasibility of testing the bullet fragment to determine whether it was fired from the
BMW, there is no evidence in the record that the bullet fragment could have been tested
to determine whether it was shot from a revolver or semi-automatic pistol.
Even if the trial court erred in admitting into evidence the bullet fragment, any
error was harmless under the standard of either People v. Watson, supra, 46 Cal.2d at p.
836, or Chapman, supra, 386 U.S. at p. 24. Defendants argue that testing of the bullet
fragment to determine whether it was fired from the BMW vehicle could have resulted in
“exonerating evidence that the subject BMW is not the one used in the crime . . . .“ As
noted above, regardless of whether the BMW vehicle was used in the shootings, there
was substantial evidence that defendants were occupants of a vehicle from where the
shots were fired.
In addition, even if Alexsi mistakenly identified the gun that was involved in the
shooting as a revolver, that mistake was insignificant. Defendants did not challenge
whether the bullet caught by Alexsi mid-air and given to Officer Rojas was shot from the
BMW based on a ballistics analysis of that bullet. In addition, regardless of the whether a
revolver or a semi-automatic gun was used during the shooting, as noted above, there was
substantial evidence that gun shots came from defendants’ vehicle.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
MINK, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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