Opinion
D068927
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL GONZALES, Defendant and Appellant.
Mazur & Mazur and Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN340552-2) APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed. Mazur & Mazur and Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gabriel Gonzales of first degree burglary (Pen. Code, §§ 459-460) and vandalism (§ 594, subds. (a), (b)(1)). He admitted in bifurcated proceedings he had suffered prior convictions. (§ 667, subds. (b)-(i).) The court sentenced him to 13 years in prison.
Statutory references are to the Penal Code unless otherwise stated.
Gonzales's sole contention on appeal is that the court erroneously admitted evidence regarding an uncharged offense. We affirm.
FACTUAL BACKGROUND
On December 31, 2014, two days after Alison Hahn broke off her relationship with Christopher Gibbs, Hahn was returning to her apartment with two male friends at approximately 5:00 p.m. when she saw Gonzales in his truck. Shortly afterwards she saw Gibbs appear at her apartment. He swore at her and called her a slut as he sprayed bear mace to form the letters S-L-U-T on her window screen. The bear mace entered the screens of the apartment, causing Hahn to experience burning in her eyes and skin, and affecting the upstairs neighbor who had a newborn baby. Hahn called 911. When Hahn went outside and confronted Gibbs and Gonzales briefly, Gibbs sprayed bear mace again, and Gonzales appeared to jump towards Hahn. Afraid, Hahn ran back to her apartment.
Gibbs pleaded guilty to burglary of a nonresidential building with the intent to commit a crime; use of tear gas not in self-defense; and being a felon in possession of a firearm. --------
Later that night, Hahn heard a loud banging sound on her apartment door and Gonzales and Gibbs entered the apartment. Each carried a gun in his hand. Gonzales's face was covered with a bandana, but Hahn recognized him because of his facial tattoos. Hahn was scared, and she and her two male friends jumped out her bedroom window. She called 911 again and reported that Gonzales and Gibbs had guns. Her apartment door was destroyed and had to be replaced.
Gonzales testified he had not accompanied Gibbs to Hahn's apartment during the bear mace incident. He claims he went there only once that night, at around 9:00 p.m., following Gibbs's request for help in getting his property from Hahn's apartment before Hahn threw it out. Gonzales testified he drove Gibbs and another individual named Frankie to Hahn's apartment. Gonzales testified Gibbs kicked open Hahn's apartment door and an inside door. Gibbs realized the inhabitants of the house had fled, so Gonzales drove Gibbs away from the scene. Gonzales testified on cross-examination that he had lied to a deputy sheriff who interviewed him about the incident by denying that he went to Hahn's apartment at all that night.
The People moved in limine to admit the contents of Hahn's 911 calls. Gonzales moved in limine to exclude testimony, including from the 911 calls, regarding the bear mace incident. The trial court tentatively ruled to exclude testimony regarding the bear mace incident. At the hearing, the prosecutor argued: "Mr. Gonzales was aiding Mr. Gibbs when he went back to the house, just like he aided Mr. Gibbs prior to that, two hours beforehand when they were there with the bear spray. [¶] . . . [¶] So the fact that they used a weapon previously, went back and got a—what we'll call—a more serious weapon and came back to the apartment, shows this jury that their intent was to use that weapon . . . because they had previously used a weapon a couple hours beforehand." The prosecutor said the evidence was not offered as a prior uncharged crime under Evidence Code section 1101, subdivision (b), because the bear mace incident was the start of the burglary that was interrupted after Hahn called police and resumed when Gonzales and Gibbs returned that night. The prosecutor also pointed out that the parties would stipulate that Gibbs had pleaded guilty to using bear mace that night.
The court changed its tentative ruling: "I do agree with [the prosecutor's argument] that that will be admissible then, despite my earlier rulings on that. You have explained the relevance of that. And although there is some prejudicial effect, as I said, you have articulated a much stronger probative value."
DISCUSSION
" ' " 'Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends " 'logically, naturally, and by reasonable inference' to establish material facts." ' " ' " (People v. Richardson (2008) 43 Cal.4th 959, 1000-1001.)
Under Evidence Code section 352, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue consumption of time, undue prejudice, confusion of the issues, or misleading the jury. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court has broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 permits its exclusion. (People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584, 634.)
In People v. Diaz (2014) 227 Cal.App.4th 362, 377, we described the manner by which this court reviews a trial court's evidentiary ruling for an abuse of discretion: "A proper exercise of discretion is ' "neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice." ' [Citation.] Exercises of discretion must be ' "grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." ' "
The court did not abuse its discretion in admitting evidence of the uncharged bear mace incident. Although Hahn identified Gibbs, and not Gonzales, as the one who sprayed the bear mace, Hahn testified that Gonzales accompanied Gibbs to the apartment and also intimidated Hahn by jumping at her. This testimony was relevant in light of Gonzales's defense that he did not accompany Gibbs to Hahn's apartment during the bear mace incident, but rather only in the second incident, and at Gibbs's behest because Gibbs needed Gonzales's vehicle to help him recover his property from there. The admitted testimony provided helpful context for the jury to interpret Gibbs's and Gonzales's return to Hahn's apartment with arms as an escalation of the earlier altercation. The two men were undeterred by the presence of Hahn's two male friends, and damaged her door as they stormed inside. Because the bear mace had previously harmed them, Hahn and her friends took the intrusion seriously and jumped through a bedroom window. Based on the uncharged incident, the jury could reasonably infer that in the charged incident Gonzales knew about Gibbs's intent to vandalize Hahn's apartment and enter it without permission, and therefore Gonzales had direct liability for participating in the incident or, alternatively, he did so as an aider and abettor.
We conclude the introduction of evidence regarding the bear mace incident did not prejudice Gonzales under Evidence Code section 352. The jury was not likely to be confused by the evidence because the incidents were separate in time and in the instruments used: the earlier incident involved Gibbs's use of mace, and the later one involved Gonzales's and Gibbs's being armed with guns. Moreover, the testimony did not consume undue time.
Even if the court had excluded evidence of the bear mace incident, the likelihood that the jury would have reached a more favorable verdict was remote. First, the evidence was cumulative because of the stipulation that Gibbs had used bear mace in the earlier incident. Second, the evidence of Gonzales's guilt was compelling. Hahn positively identified him based on his facial tattoos. Further, he testified he was at the scene of the crime. The jury was entitled to disbelieve his claims he only accompanied Gibbs and did not commit any crimes there. On this record, any error caused by the court's admission of the bear mace incident was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Partida (2005) 37 Cal.4th 428, 433.)
We do not consider Gonzales's argument regarding judicial estoppel, which he raised for the first time in his reply brief. When an appellant fails to raise an issue in the opening brief, raising it for the first time in a reply brief or at oral argument, we generally decline to address the issue or address it in a summary manner. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.