Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 192380-02
RIVERA, J.
Michael Perez appeals from a judgment of conviction upon a jury verdict finding him guilty of first degree murder (Pen. Code, § 187) with intentional discharge and personal use of a firearm (§§ 12022.53, subds. (d) & (e); 12022.5, subd. (a)(1) and possession of a handgun by an ex-felon (§ 12021, subd. (a)(1)). Defendant contends that the trial court erred in denying his motion to suppress evidence and in excluding impeachment evidence of a prosecution witness. We affirm.
All further statutory references are to the Penal Code.
I. FACTS
At approximately 2:00 a.m. on June 16, 2003, Wilfred Miranda, Marie Salazar, Harold Lopez and Mark Rivera were hanging out at the BART station plaza at 24th and Mission Streets. The group had been drinking for several hours, and the men had smoked PCP. Salazar and Miranda saw a dark blue Lincoln drive by the BART plaza slowly, turn right on Mission Street and then return about twenty minutes later. The front seat passenger stuck his head out of the window and said, “Where you from mother fuckers?” and started to shoot. Four to six shots were fired. Rivera was shot twice; the shooting left him paralyzed in his left leg. Miranda testified that there were three people in the car.
At about 2:00 a.m., Rachel Butler drove to the 7-Eleven store at San Jose Avenue and Alemany Boulevard. Brandi Taylor and Deshawn Davis were with her in the car. Butler parked her car in the parking lot in front of the store. There was a blue Lincoln Town car in the lot parked immediately to her left. Defendant was sitting in the front passenger seat of the car. Davis got out of Butler’s car and went inside the store.
Butler also saw Michael Rojas standing on the sidewalk in front of her car. As she waited for Davis to come out of the store, a black Mustang pulled up to a parking space two slots to the right of her. A heavyset Hispanic male, subsequently identified as Alfred Duenas, got out of the car and went into the store. An Hispanic woman, later identified as Angelique Silveyra, then came out of the store and got into the left side of the Lincoln. She subsequently went back into the store.
Rojas left the store and approached Perez who was still sitting in the Lincoln. Perez asked him, “Are you ready to do this?” At the time, defendant was putting on a pair of black baseball gloves and a bandanna over his face. Rojas walked around to the driver’s side of the Lincoln. At some point, Silveyra also returned and got into the back seat of the Lincoln. Butler did not drive away because she was waiting for Davis to exit from the store.
Duenas then came out of the store and approached his car. Perez asked Duenas something about Norte or Norteno. Duenas turned towards Perez and said, “What, what is it?” and sounded to Butler as if he was ready to fight. Duenas walked to the passenger side of his car. Defendant got out of the Lincoln and began fumbling for something in the front seat area. When he got up, he had a gun in his hand. Butler immediately started her car, and Davis got into the car. Before leaving the parking lot, Butler saw defendant go behind her car toward Duenas's car. She heard gunshots and backed out of the parking lot. As she did so, she saw defendant shoot Duenas. Duenas died from multiple gun shot wounds.
Butler drove away but when she got to a stop light at John Daly Boulevard, she found that the Lincoln was in the lane to her left. She saw defendant in the front passenger seat and Rojas was driving. Butler decided to return to the 7-Eleven store because she was concerned that there were surveillance cameras and she wanted the police to understand that she had nothing to do with the shooting. She dropped off Davis and returned to the scene with Taylor. There, they reported the incident to the police.
On the afternoon of June 17, the police responded to the 2000 block of Newcomb Avenue where they observed a blue Lincoln Town car. Silveyra was in the driver’s seat and defendant was in the front passenger seat. Defendant identified himself as Ernesto Hernandez. Rojas was also detained at the scene. The police searched the Lincoln and found a black nylon case in the middle of the back seat containing narcotics, some CD’s, papers and a Nokia cell phone book. The police also found a blue beanie cap, three blue bandannas, and two baseball caps. They also located a gray baseball glove in the car, and seized a blue sweatshirt that defendant was wearing when he was arrested. Both tested positive for gunshot residue.
On June 24, 2003, Butler was shown three photographic lineups. She identified Rojas as the shooter in the first photographic lineup she was shown. In a second photographic lineup shown shortly thereafter, she identified defendant as the “actual shooter.” She was unable to identity the Hispanic woman who was at the scene. Butler admitted that in June 2001, she was convicted of felony possession for sale of crack cocaine.
John Sanchez, a criminalist, testified that he examined the discharged cartridge casings found at the scene of the 7-Eleven shooting and those found at the scene of the BART shooting and determined that the casings were fired through the same gun.
Silveyra testified under a grant of immunity. She met defendant in November 2002. At the time, she was dating Marco Bolanos, a Norteno gang member. She began dating defendant in March or April of 2003. Defendant associated with the Sureno gang. Silveyra met Rojas in April or early May 2003. Rojas was also a Sureno.
In May 2003, defendant purchased the blue Lincoln Town car. Since he did not drive, the car was registered to his brother and Silveyra drove it. Defendant kept a firearm in the back side panel of the Lincoln.
On June 14, 2003, Silveyra and defendant argued; Silveyra left defendant and went to a restaurant near 24th and Mission Streets. Silveyra met Bolanos and Duenas there. Later that evening, she returned to defendant. The following afternoon, Silveyra and defendant went to the Best Inn on San Bruno Avenue and smoked methamphetamine. Sometime that evening, they went in the Lincoln to pick up Rojas in the Mission District. After picking up Rojas, they drove on 24th Street towards Mission Street. Silveyra stopped the car for a red light as she approached Mission Street. Defendant opened the front passenger door and fired his gun. Silveyra saw Rivera fall after he was shot and she drove away. She drove to 24th and Treat Streets, stopped the car and then Rojas took over the driving. Silveyra asked defendant, “Why the fuck did you do that?”
They then went to the 7-Eleven on San Jose Avenue because Silveyra wanted a Slurpee. They parked in front of the store and Silveyra and Rojas entered the store. Defendant stayed in the front passenger seat of the car. While Silveyra was in the store, Duenas came into the store. Silveyra spoke to him near the cash register. Duenas told her that she was choosing “scraps over his boy”. Silveyra told him, “It’s not like that,” and asked him not to tell Bolanos. Silveyra left the store and got into the back seat of the Lincoln. Defendant, who was standing outside the car, asked her who she had talked to and Silveyra told him it was Duenas from Bryant. Defendant was wearing a blue bandana on his face.
The term, “scrap,” is a derogatory term for a Sureno.
Bryant refers to the 22nd Street and Bryant Street Norteno gang.
Duenas came out of the 7-Eleven. Defendant asked him, “Where are you from?” Duenas responded, “Norte controla” and ran to his car. Defendant went towards the rear of the Lincoln; Silveyra thought that he was going to rob Duenas. Silveyra heard about four gunshots. Silveyra got into the driver’s seat, put the car in reverse, and backed up. Defendant and Rojas got back into the car. Silveyra drove back to the Best Inn.
Rojas was a codefendant at trial. He entered into a plea agreement immediately prior to the court’s instructions to the jury and closing arguments.
Silveyra testified that her application to the California Witness Protection Program was approved. She further testified that defendant is the father of her daughter born in December 2003 and that she is in regular communication with him.
II. DISCUSSION
A. Motion to Suppress
1. Factual Background
Defendant moved to suppress the evidence seized from the Lincoln on the grounds that: (1) it was a warrantless search; (2) the police were not justified in searching the bag found in the car since it did not belong to Silveyra who had the search condition; and (3) the search was not justified as incident to an arrest.
The following testimony was elicited at the hearing on the suppression motion: On June 17, 2003, at approximately 3:00 p.m., the police responded to a call that shots were fired in the area of the 2000 block of Newcomb. The police were further informed that a blue Cadillac was involved, that a Latin man wearing gray sweats had fired the shots, and that he and a woman ran into a limousine warehouse at that location. Officer Dorgan detained Rojas inside the warehouse. Dorgan pat searched Rojas for weapons and found a small package in his left front pocket containing heroin. Dorgan placed Rojas under arrest for possession of heroin.
Officers Festa and Cruz also responded to the scene and investigated a Lincoln Town car that was backed up against the warehouse. They assumed that the Lincoln could have been mistaken for a Cadillac. They approached Silveyra who was in the driver’s seat and defendant who was in the front passenger seat. Silveyra identified herself as Angelique Miller while defendant identified himself as Ernesto Hernandez. The officers ordered them out of the car; defendant was immediately pat searched for weapons. Silveyra told Officer Cruz that she was pushing her car on Newcomb Avenue when someone took “a shot” at her. She was not pat searched until Officer Arndt, a female officer, arrived on the scene. At that point, the police had learned that Silveyra was on probation and subject to a search condition. Arndt searched Silveyra and found a glass pipe in her pocket.
The Lincoln’s windshield was damaged.
The police searched the Lincoln based on Silveyra’s probation search condition. They did not locate a gun in the car but found a backpack in the middle of the back seat. Inside the backpack, the police found some glass jars containing crystal methamphetamine and marijuana in a plastic bag. The bag also contained scales and other items. The police also found three blue bandanas, a light blue beanie, and two baseball caps in the car. One of the caps had the term, SURX9STSUR13, on it, which along with the blue bandanas, the police recognized as evidence of gang affiliation. The police thereafter arrested Silveyra and defendant for possession for sale of methamphetamine and marijuana.
On August 15, 2003, police inspector Herman Jones, in the course of his investigation of Duenas’s murder, reviewed property seized from the Lincoln. He looked in the backpack and found CD’s and a disposable camera with the name, Kid, written on it. Kid was also written on the backpack. The name was significant to him because he knew that one of the individuals arrested on June 17, 2003 used Kid as his street gang name. He subsequently learned that defendant was Kid. On August 15, 2003, Jones also knew that defendant had suffered a felony conviction and that he was on parole and subject to a search condition.
Jones subsequently had the film in the disposable camera developed. Some of the photographs were of defendant.
The trial court denied the suppression motion, finding that the search was justified due to exigent circumstances in that the police were responding to the scene based on a “shots fired” call and Silveyra, who was subject to a search condition, appeared to be in control of the car. The court further found that defendant’s parole condition precluded him from having an expectation of privacy in the officer’s subsequent search of the bag and the search of the disposable camera.
2. Standard of Review
The standard of appellate review of the trial court’s ruling on a motion to suppress evidence is well settled. We must defer to the trial court’s factual findings where they are supported by substantial evidence, but we exercise our independent judgment as to the reasonableness of the challenged search and seizure. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
3. Analysis
Defendant questions the search of the car on the ground that the police did not ask either Silveyra or defendant about the car’s ownership or who owned the backpack prior to the search. He points to testimony in the record that the police determined that the car was owned by a third person prior to the search.
Officer Festa, while initially testifying that he learned prior to the search that Joseph Perez was the registered owner of the car, subsequently testified, after reviewing his report, that the search was conducted before he learned that Joseph Perez was the owner. He further testified that he searched the car based on Silveyra’s probation search condition. Festa’s search was justified as a probation search given Silveyra’s probationary status, the evidence that he found her in the driver’s seat of the car, and that she referred to the car as “her car” when questioned at the scene. (See People v. Woods (1999) 21 Cal.4th 668, 682 [police may search those portions of residence over which they reasonably believe probationer has complete or joint control]; People v. Smith (2002) 95 Cal.App.4th 912, 916 [“warrantless search, justified by a probation search condition, may extend to common areas, shared by nonprobationers, over which the probationer has ‘common authority.’ ”].)
Defendant further argues that the search of the backpack was not justified without an inquiry to determine its ownership. In People v. Boyd (1990) 224 Cal.App.3d 736, 749, the court held that an otherwise valid parole search will not be invalidated simply because an officer fails to inquire about the ownership of the item to be searched. “Such a rigid rule would unnecessarily bind the officer to the answer given, regardless of its veracity.” (Ibid.) The critical issue is whether the officer reasonably suspected that the item to be searched was owned or controlled by the probationer. (Id. at p. 745.) Here, the backpack was found in the back seat of the car which Silveyra referred to as her car. And, when the officers arrived on the scene, Silveyra was in the car’s driver’s seat. On these facts, it was reasonable for Officer Festa to suspect that the backpack was under her control and within the scope of the probation search condition.
B. Impeachment Evidence
Defendant next contends that the trial court erred in excluding evidence that Silveyra was involved in an incident with other Nortenos in which he was stabbed and run down by a car rented by Silveyra. The court excluded the evidence under Evidence Code section 352, finding that the probative value of the evidence had not been established inasmuch as there was no direct evidence that Silveyra was driving the car.
The trial court did not abuse its discretion in excluding the evidence. While defendant’s offer of proof included that Silveyra rented the car and some of her belongings were found in it, defendant conceded that whether she was the driver had not been established beyond a mere suspicion. In light of the fact that defendant failed to show that Silveyra was involved in the incident, the trial court correctly ruled that the evidence was inadmissible. No error appears.
III. DISPOSITION
The judgment is affirmed.
We concur:
REARDON, Acting P. J., SEPULVEDA, J.