Filed 4/1/14 P .v. Beltran CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE BELTRAN,

Defendant and Appellant.

 B246337

 (Los Angeles County

 Super. Ct. Nos. BA388010

 and BA388228)

In re JOSE BELTRAN

On Habeas Corpus.

 B253289

 (Los Angeles County

 Super. Ct. Nos. BA388010

 and BA388228)

APPEAL from a judgment of the Superior Court for Los Angeles County, 

Clifford L. Klein, Judge. Judgment affirmed; Petition for Writ of Habeas Corpus 

denied.

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant, 

Appellant and Petitioner.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. 

Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

Defendant Jose Beltran was convicted by a jury of one count of second 

degree murder (Pen. Code,1§ 187, subd. (a)) with personal use of a firearm 

(§ 12022.53, subds. (b), (c), (d)), two counts of attempted murder (§§ 664/187, 

subd. (a)) with personal use of a firearm (§ 12022.53, subds. (b), (c), (d)), one 

count of shooting at an occupied vehicle (§ 246), and one count of carrying a 

loaded handgun not registered to him (§ 12031, subd. (a)(1)). He appeals from the 

judgment sentencing him to a prison term of 77 years to life, plus 8 months. We 

affirm.

BACKGROUND

In August 2011,2Juan David Vasquez Loma (Vasquez), Luis Lopez, and 

Jonathan Mendoza worked at Garage Pizza in the Silver Lake area of Los Angeles. 

Shortly before 5:00 a.m. on August 7, they left the restaurant together at the end of 

their shift. They got into Vasquez’s pickup truck; Vasquez was in the driver’s seat, 

Mendoza sat next to him, and Lopez was next to Mendoza, by the front passenger 

window. 

Vasquez, who was driving Lopez and Mendoza home, drove down Effie 

Street toward Fountain Avenue. He came to a stop sign a few blocks before Silver 

Lake Boulevard. There was a dark green Honda stopped at the stop sign. Vasquez 

stopped behind the Honda, waiting for it to proceed. When it did not move after a 

few minutes, Vasquez drove around it. As Vasquez passed the car, the driver 

looked toward the pickup truck through the open driver’s side window. Mendoza 

and Lopez saw the driver’s face. The driver was Latino, with a skinny build, long 

face with little bumps on his cheeks and a thin mustache, and his hair was in a buzz 

 

1

Further undesignated statutory references are to the Penal Code.

2 All references to dates relate to the year 2011.
3

cut. There also was a Latina woman with long curly hair in a ponytail in the front 

passenger seat. 

Vasquez drove to Silver Lake Boulevard, where he made a right turn. A 

block later, the Honda pulled up alongside the driver’s side of Vasquez’s pickup 

truck. The driver of the Honda turned toward the truck and appeared to be yelling 

something, but the occupants of the truck could not hear what he was saying 

because the windows of the truck were rolled up. Vasquez said to Lopez and 

Mendoza, “What’s up with that guy?” Lopez leaned forward to look, and asked, 

“Does he have a gun?” Vasquez said “Yes,” and all three of them leaned back in 

their seats as they heard a gun firing and an impact on the window. The Honda 

took off as Vasquez lost control of the truck and crashed into a parked car. Lopez 

got out of the truck, went to the driver’s side, and opened the door. He saw that 

Vasquez had been shot in the head, and called 911. He told the 911 operator that 

the person who had shot Vasquez was driving a green Honda, that the driver was a 

male Latino, and there was a female passenger.3

Los Angeles Police Officer Robert Alvarado and his partner were the first to 

arrive at the scene, at 5:05 a.m. When Officer Alvarado approached the pickup 

truck, he saw that Vasquez was somewhat conscious and trying to speak. 

Paramedics took Vasquez to the hospital, where he subsequently died. Deputy 

Medical Examiner Dr. Ajay Panchal conducted an autopsy, which disclosed that a 

bullet entered Vasquez’s left temple area and did not exit his head. Dr. Panchal 

recovered the bullet from the right temple lobe of Vasquez’s brain. The bullet was 

examined and found to be consistent with a .32 caliber bullet fired from a semiautomatic weapon. 

 

3

The audiotape of the 911 call was played for the jury at trial; a transcript of the 

call was provided to the jury and is part of the record on appeal. 
4

Detective Jose Carrillo and his partner responded to the crime scene two 

hours after the shooting, where they recovered a .32 caliber spent shell casing. 

They left the scene shortly thereafter to interview Lopez and Mendoza at the police 

station. Detective Carrillo returned to the crime scene later that afternoon. While 

he was there, a car approached him. The man who was driving, Mark Tubalinal,

told him that he may have information about the shooting. Detective Carrillo gave 

Tubalinal his card and asked Tubalinal to call him the following day to set up an 

appointment to be interviewed. Although Tubalinal testified that he called the 

detective sometime after August 7 and left a message, Detective Carrillo never 

received the message and did not interview Tubalinal until late September or early 

October, after Tubalinal was arrested for residential burglary.4

On August 18, Lopez and Mendoza went to the police station to meet with a 

sketch artist to put together a composite sketch of the driver of the green Honda. 

The composite sketch was released to the public on August 19, and a few days 

later, Detective Carrillo e-mailed an information flyer to the surrounding L.A.P.D. 

Divisions, Rampart and Hollywood, on the theory that the person involved in the 

shooting was from the surrounding community. That same day, Detective Carrillo 

 

4

Tubalinal testified at trial that he had stopped at a 7-Eleven store on Silver Lake 

Boulevard on his way to work at around 5:00 a.m. on August 7. After exiting the store, 

he drove on Silver Lake toward Sunset Boulevard and saw two vehicles, a dark green 

sedan and a pickup truck, side-by-side in the street, blocking the lane in which he was 

travelling. It appeared that the people in the vehicles were talking. Tubalinal pulled into 

the opposite lane to pass the vehicles, passing on the left (driver’s side) of the green car. 

As he passed, he saw a Hispanic man in the driver’s seat, and heard him yelling, although 

he could not understand what he was saying. When he was 100 to 200 yards away, he 

heard two or three “pops,” but did not think anything of it until he turned on the 

television at work and saw a news report of a shooting on Silver Lake Boulevard. When 

he was interviewed by Detective Carrillo, he was shown a photographic lineup, and 

identified defendant’s photo as the driver of the green car; he also identified defendant at 

trial. 
5

received a call from a detective in the Rampart gang enforcement detail, telling 

him they had arrested a person who resembled the composite sketch.

The person who had been arrested was defendant. On August 19, Officers 

Raymond Flores and Garrett Breegle were on patrol when they conducted a traffic 

stop of a green Honda Accord driven by defendant. Defendant told the officers 

that he only had a driving permit, and did not have a license. Officer Breegle 

searched the car and found a loaded nine-millimeter handgun under the driver’s 

seat. When questioned, defendant said that he carried a gun for protection because 

he recently was stopped by a rival gang member and had been shot at by La 

Mirada gang members; he said he bought the gun from a friend two or three 

months earlier.5 The officers arrested defendant. 

After receiving the call from the Rampart detective, Detective Carrillo 

pulled defendant’s photo, noticed the resemblance to the composite sketch, and put 

together a photographic lineup. He put defendant’s photo in the number six 

position. He showed the photo lineup to Lopez, asking if he could identify anyone. 

Lopez told him that his attention was drawn to numbers two and six, that they 

looked a lot alike, and he could not choose between them. Detective Carrillo then 

showed the photo lineup to Mendoza, who immediately identified number six 

(defendant) as the person who shot Vasquez.

Using a case tracking system on the L.A.P.D. computer, Detective Carrillo 

tried to find the woman who was in the car with defendant at the time of the 

shooting. He identified a possible person, Diana Villeda. He called her and asked 

her to come to the police station. She came in on August 26, and was interviewed 

 

5

Evidence of defendant’s gang membership and other gang evidence was presented 

at trial, but is not included in this statement of facts because the jury found the gang 

allegations were not true.
6

by Detective Carrillo and Detective Burcher.6 During that interview, Diana7told 

the detectives that defendant had picked her up from her friend’s house and was 

driving her home on August 7. They were driving down Effie Street when a black 

pickup truck came up behind them and made a right turn in front of them. 

Defendant got angry and followed the truck. He was yelling at the person in the 

truck. The person driving the truck made a gesture, and defendant got his gun 

from under his car seat and fired a single shot at the truck. 

The day after Detective Carrillo interviewed Diana, August 27, he conducted 

a follow-up at the Los Angeles County jail, and met with defendant. In the 

afternoon of August 29, defendant called the Villeda residence and spoke to 

Diana’s younger sister, Daisy.8 Defendant told Daisy, “Your sister has to help me 

out. She’s the only one that’s going to be able to get me out. . . . If she helps me 

out, then they’ll forgive me.” Defendant told Daisy that Diana “has to say that I 

wasn’t right there. She knows I was right there. She knows that wasn’t my car.” 

When Daisy asked if the police could “lock [Diana] up” as an accomplice, 

defendant said, “She could say I’m not -- I wasn’t an accomplice. She could say 

that shit. She could fight it. It’s going to be easier for her to fight it than me 

fighting it over here, because she’s out there and I’m in here.” Daisy then asked 

defendant, “What kind of strap[9]is it?” Defendant responded that his is a nine-

 

6

The interview was videotaped, and the tape was played for the jury at trial during 

the prosecution’s cross-examination of Diana, who testified for defendant; the jury also 

was given a transcript, which is a part of the record on appeal. 

7 We refer to Diana Villeda by her first name to distinguish her from her sister 

Daisy, who was later interviewed by Detective Carrillo.

8

The telephone call was recorded, and the recording was played for the jury; the 

transcript of the call, which was provided to the jury, is a part of the record on appeal. 

9 Detective Carrillo testified that “strap” is street terminology for a handgun. 
7

millimeter Luger. Daisy said, “No, not yours. I know which one yours is. The 

other one.” Defendant responded, “A three-two.” Daisy told him that his mother 

told her it was “a 24-something,” and defendant said, “I don’t know what the fuck 

it was, but it wasn’t my gun. I did not -- it wasn’t my gun. We already know 

that.” 

At the time of the telephone call, only a few people knew that the gun used 

to kill Vasquez was a .32 caliber gun; that information had not been given to the 

public. 

A few hours after defendant’s telephone call, Diana, Daisy, and their mother 

came to the police station at Detective Carrillo’s request. Detective Carrillo and 

Detective Burcher interviewed Daisy (with her mother present, because she was 14 

years old) and re-interviewed Diana.10 During Diana’s re-interview, Diana told the 

detectives that defendant was not the person who did the shooting. She said that 

she was at a party in North Hollywood with a man named Roger. They left the 

party after Roger got mad and fired a shot at someone. They dropped defendant at 

home with Daisy, and Roger and Diana left in Diana’s mother’s car. She said it 

was Roger, not defendant, who was the shooter. Detective Carrillo told Diana that 

he did not believe her, and said that he knew that defendant told her to lie, because 

the calls from jail are recorded. She later admitted that defendant was the person 

who shot Vasquez, and that what she had told the detectives during her previous 

interview was the truth.11 

 

10 Both interviews were videotaped, but only the recording of Diana’s was played for 

the jury; the transcript of Diana’s interview was provided to the jury and is included in 

the record on appeal. 

11 At trial, Diana testified that Roger May was the shooter, and that she and Roger 

were in her mother’s car (a blue Toyota Corolla) at the time. 
8

Based upon his interviews with the Villedas, the next day, August 30, 

Detective Carrillo pulled up a current photo of Roger May and compared it with 

the composite sketch of the shooter. Although he did not see any similarities, he 

tried to locate Roger May and created a “Wanted For Questioning” flyer on him. 

He also listened to the recordings of defendant’s telephone calls to the Villeda 

residence, and heard the August 29 call between defendant and Daisy. After 

listening to that call, he contacted Daisy and re-interviewed her; Daisy recanted 

what she had earlier told him, and told him that defendant was the shooter.

12 Daisy 

said that she and Diana were told to lie and name Roger May as the shooter, but 

she would not say who had instructed her to lie.13

Defendant was charged by information with one count of carrying a loaded 

handgun not registered to him (count 1, § 12031, subd. (a)(1)), one count of 

murder (count 2, § 187, subd. (a)), one count of shooting at an occupied motor 

vehicle (count 3, § 246), and two counts of attempted premeditated murder

(§§ 664/187, subd. (a)) of Mendoza (count 4) and Lopez (count 5). The 

information also included gang allegations (§ 186.22, subd. (b)(1)(C)) as to counts 

2 through 5, and personal use of a gun allegations (§ 12022.53, subds. (b), (c), (d)) 

as to counts 2, 4, and 5. 

The jury found defendant guilty of carrying a loaded firearm (count 1) and 

shooting at an occupied motor vehicle (count 3). Although the jury acquitted 

 

12 Daisy was a witness for defendant at trial, and testified that she, defendant, Diana, 

Roger May, and Roger’s brother and uncle returned to defendant’s house from a party in 

North Hollywood in the early morning hours of August 7, and that she and defendant 

stayed at defendant’s house while Diana, Roger, and the rest left in her mother’s car. 

13 Evidence was presented at trial that in the evening of August 30, defendant’s 

mother, sister, his sister’s husband, Daisy, and Diana went to Garage Pizza and asked to 

speak to Lopez and Mendoza, to show them a photo and ask if they were sure that the 

person they had identified really was the person who attacked them in Silver Lake. 
9

defendant of first degree murder, it found him guilty of second degree murder

(count 2). The jury also found him guilty on both attempted murder counts, but 

found the attempted murders were not willful, deliberate, and premeditated. 

Finally, the jury found the gun allegations to be true and returned a “not true”

finding on the gang allegations. 

The trial court sentenced defendant as follows. On count 2, the court 

imposed a term of 20 years to life for the murder, plus 25 years to life for the gun 

allegation; on count 3, the court imposed (and stayed under section 654) the high 

term of 7 years, plus 25 years to life for the gun allegation; on count 4, a 

consecutive term of 7 years, plus 25 years to life for the gun allegation; on count 5, 

a concurrent term of 7 years, plus 25 years to life for the gun allegation; and on 

count 1, a consecutive term of 8 months (one-third the midterm of 24 months), for 

a total sentence of 77 years to life, plus 8 months. Defendant timely filed a notice 

of appeal from the judgment. 

DISCUSSION

Defendant raises five issues on appeal. First, he contends there is 

insufficient evidence to support the attempted murder convictions because 

defendant fired only a single shot. Second, he argues the trial court gave an 

incorrect instruction on attempted murder that allowed the jury to convict on both 

counts even if they found defendant only intended to kill one of the attempted 

murder victims. Third, he contends that evidence of the gun found in defendant’s 

car should have been suppressed. Fourth, he asserts the trial court improperly 

increased the base mandatory minimum sentence on the second degree murder 

conviction. Fifth, he argues the trial court abused its discretion by allowing the 

jury to hear a portion of Diana’s first interview in which the detectives alluded to 

defendant’s other bad acts. In addition, defendant has filed a petition for writ of 
10

habeas corpus (case No. B253289) in which he contends his trial attorney rendered 

ineffective assistance by failing to properly object and preserve for appellate 

review the magistrate’s ruling denying defendant’s suppression motion at the 

preliminary hearing. 

A. Sufficiency of the Evidence to Support Attempted Murder Counts

As defendant correctly observes, “[t]o be guilty of attempted murder, the 

defendant must intend to kill the alleged victim, not someone else. The 

defendant’s mental state must be examined as to each alleged attempted murder 

victim. Someone who intends to kill only one person and attempts unsuccessfully 

to do so, is guilty of the attempted murder of the intended victim, but not of 

others.” (People v. Bland (2002) 28 Cal.4th 313, 328; accord, People v. Smith 

(2005) 37 Cal.4th 733, 740.) Defendant argues that, even assuming he intended to 

kill Vasquez, there is no evidence he intended to kill Lopez and Mendoza because 

he fired a single shot and there is no evidence they were in the “kill zone.” We 

disagree.

The fact that defendant in this case fired a single shot at three victims, killing 

one, does not preclude a finding that he intended to kill all three. In People v. 

Smith, the defendant was convicted of two counts of attempted murder after he 

fired a single shot at a vehicle in which a woman was seated in the driver’s seat 

and her baby was in a car seat directly behind her. The evidence showed that the 

defendant fired from directly behind the car, narrowly missing both the woman and 

the baby. (People v. Smith, supra, 37 Cal.4th at pp. 742-743.) The Supreme Court 

observed that “the act of purposefully firing a lethal weapon at another human 

being at close range, without legal excuse, generally gives rise to an inference that 

the shooter acted with express malice. That the shooter had no particular motive 

for shooting the victim is not dispositive. . . . Nor is the circumstance that the 
11

bullet misses its mark or fails to prove lethal dispositive—the very act of firing a 

weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been 

on target”’ is sufficient to support an inference of intent to kill. [Citation.]” 

(People v. Smith, supra, 37 Cal.4th at p. 742.) The Court held that evidence that 

the defendant “purposefully discharged a lethal firearm at the victims, both of 

whom were seated in the vehicle, one behind the other, with each directly in his 

line of fire, can support an inference that he acted with intent to kill both. 

[Citations.]” (Id. at p. 743; see also People v. Chinchilla (1997) 52 Cal.App.4th

683, 685 [“intent to kill two different victims can be inferred from evidence that 

the defendant fired a single shot at the two victims, both of whom were visible to 

the defendant”].) 

Defendant attempts to distinguish these cases, arguing that Lopez and 

Mendoza were not in the line of fire because they were seated in a pickup truck, 

which has higher seating than the sedan from which he fired the gun. We are not 

convinced. Both Lopez and Mendoza testified that defendant saw them when the 

truck drove around the Honda, that they saw defendant when he drove up 

alongside the truck, and that Lopez, who was farthest away, saw that defendant had 

a gun. The jury reasonably could infer from this evidence that Lopez and Mendoza 

were directly in the line of fire when defendant pulled the trigger, and that 

defendant intended to kill both of them, as well as Vasquez. Therefore, we 

conclude substantial evidence supports the convictions for the attempted murder of 

Lopez and Mendoza.

B. Jury Instruction on Attempted Murder Counts

The trial court instructed the jury on attempted murder by giving a modified 

version of CALCRIM No. 600, as follows: “To prove that the defendant is guilty 

of attempted murder, the People must prove that: one, the defendant took at least 
12

one direct but ineffective step toward killing another person; and [¶] two, the 

defendant intended to kill a person. [¶] . . . [¶] A person may intend to kill a 

specific victim or victims and at the same time intend to kill everyone in a 

particular zone of harm or kill zone. In order to convict the defendant of the 

attempted murder of Luis Lopez or Jonathan Mendoza, the People must prove that 

the defendant not only intended to kill Juan Vasquez, but also intended to kill Luis 

Lopez or Jonathan Mendoza, or intended to kill everyone within the kill zone. If 

you have a reasonable doubt whether the defendant intended to kill Luis Lopez or 

Jonathan Mendoza, or intended to kill Juan Vasquez by killing everyone in the kill 

zone, then you must find the defendant not guilty of attempted murder of Luis

Lopez or Jonathan Mendoza.”

Defendant contends this modified kill zone instruction was incorrect because 

it allowed the jury to convict him of attempted murder of both Lopez and Mendoza 

if the jury found he intended to kill either one of them. He argues the error cannot 

be deemed harmless because the jury did not believe the prosecution’s theory of 

the case in that the jury found defendant not guilty of first degree murder, and 

made “not true” findings on the premeditation and gang allegations. 

We agree that the modified instruction is ambiguous. “‘If a jury instruction 

is ambiguous, we inquire whether there is a reasonable likelihood that the jury 

misunderstood and misapplied the instruction.’” (People v. Young (2005) 34 

Cal.4th 1149, 1202.) “[W]e view the challenged instruction in the context of the 

instructions as a whole and the trial record to determine whether there is a 

reasonable likelihood the jury applied the instruction in an impermissible manner.” 

(People v. Houston (2012) 54 Cal.4th 1186, 1229.) We also “consider the 

arguments of counsel in assessing the probable impact of the instruction on the 

jury.” (People v. Young, supra, 34 Cal.4th at p. 1202.)
13

In this case, the jury was instructed that “[a] person may intend to kill a 

specific victim or victims and at the same time intend to kill everyone in a 

particular zone of harm or kill zone.” Referring to this instruction during closing 

argument, the prosecutor argued that defendant saw and intended to kill everyone 

in the truck. Defense counsel, on the other hand, argued that if the shooter 

intended to kill all three men, he would have fired at least three times. In short, the 

issue presented to the jury was whether defendant intended to kill everyone in 

truck. The fact that the jury rejected some aspects of the prosecution’s theory of 

the case – i.e., that defendant acted with premeditation and for the benefit of a 

street gang -- does not mean that the jury also rejected the prosecution’s argument 

that defendant intended to kill everyone in the truck and instead found that he 

intended to kill only one of the passengers. Indeed, given the seating position of 

the three men in the truck, all in a line, there is no reasonable likelihood that the 

jury misunderstood and misapplied the instruction and found that defendant 

intended to kill one of the attempted murder victims but not the other.

C. Suppression of Evidence of Gun

Defendant contends that evidence of the gun found in his car -- which was 

discovered in a pre-impound inventory search of the car after defendant was 

stopped for a Vehicle Code violation and admitted he did not have a driver’s 

license -- should have been suppressed because the decision to impound his car 

was unreasonable. We conclude defendant forfeited the issue by failing to 

properly raise the matter before the trial court. In any event, his contention fails on 

the merits.

To preserve a search and seizure issue for appeal, a defendant is required to 

raise the issue before the trial court; a motion to suppress brought before the 

magistrate at the preliminary hearing is not sufficient. (People v. Lilienthal (1978) 
14

22 Cal.3d 891, 896; People v. Richardson (2007) 156 Cal.App.4th 574, 589 

[applying Lilienthal rule following unification of municipal and superior courts].) 

In this case, defendant moved to suppress the evidence of the gun at the 

preliminary hearing. The magistrate denied the motion. On the first day of trial, 

during argument on defendant’s motion to sever count 1 from the other counts, 

defense counsel stated, “[T]here was a [section] 1538.5 motion heard at the 

preliminary hearing as well, and the reason for that traffic stop, just to touch up on 

it – I know the court hasn’t had a chance to read that in the entirety – the probable 

cause for the traffic stop was an air-freshener that was hanging from the rearview 

mirror, and that issue was litigated at the prelim. I have not found any additional 

cases to bring to the court’s attention, but I just want to reserve that issue on appeal 

for my client should there be a conviction that he can pursue any issues relating to 

the unlawful stop with no probable cause of his vehicle on August 19, 2011, and I 

would submit on that.”

Defendant contends on appeal that defense counsel’s statement to the trial 

court is sufficient to preserve the issue. It is not. Although a defendant “need not 

follow strict procedures to bring a motion to suppress, [he] must make the basis for 

the motion clear, and must seek and obtain an unambiguous ruling on the motion.” 

(Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 542.) Counsel neither 

made the basis for the motion clear nor obtained a ruling from the trial court. We 

cannot review a ruling that was never made.

But even if defense counsel’s statement to the trial court were sufficient to 

preserve the issue on appeal, we would conclude that, based on the evidence 

presented at the preliminary hearing, the decision to impound defendant’s vehicle 

was not unreasonable.

At the preliminary hearing, Officer Breegle testified about the circumstances 

surrounding the search and seizure. He testified that he conducted a traffic stop of 
15

defendant’s car because there was an object hanging from the rear view mirror that 

obstructed the driver’s view. That object was an air freshener measuring 

approximately four and one-half inches long by two and one-half inches wide, with 

the thickness of a thin piece of cardboard. When he asked defendant for his 

license, registration, and proof of insurance, defendant told him he only had a 

permit and did not have a driver’s license. Officer Breegle decided to issue a 

citation for driving without a valid license, and to impound the car. He conducted 

an inventory search in preparation for impound, found a loaded handgun under the 

driver’s seat, and arrested defendant for possession of a loaded firearm. 

There is no question that a police officer is authorized by statute to impound 

a vehicle when the officer issues the driver a notice to appear for failure to have a 

valid driver’s license. (Veh. Code, § 22651, subd. (p); People v. Hoyos (2007) 41 

Cal.4th 872, 892.) Defendant argues, however, that “[d]espite this statutory 

authorization, . . . ‘[t]he impoundment must still serve a community caretaking 

function.’” (Citing People v. Williams (2006) 145 Cal.App.4th 756, 763.) 

Defendant’s reliance on People v. Williams is misplaced. In that case, the 

police officer stopped the defendant’s car because defendant was not wearing his 

seatbelt. The defendant pulled over, parked the car (in front of his residence), and 

provided the officer with his valid driver’s license. The officer checked his 

computer and discovered there was an outstanding warrant for the defendant’s 

arrest. The officer placed defendant under arrest and impounded the car. (People 

v. Williams, supra, 145 Cal.App.4th at pp. 759-760.) The appellate court noted 

that even though Vehicle Code section 22651, subdivision (h)(1), “authorizes law 

enforcement officers to ‘remove’ a vehicle when they make a custodial arrest of a 

person ‘driving or in control of’ the vehicle, this statutory authorization does not, 

in and of itself, determine the constitutional reasonableness of the seizure.” (Id. at 

p. 762.) The court concluded the seizure in that case was unreasonable because the 
16

officer “admitted that the car was legally parked in front of appellant’s residence, 

appellant had a valid driver’s license, the car was properly registered to a car rental 

company, the car had not been reported stolen, and he had no reason to believe 

appellant was not in lawful possession of the car.” (Ibid., italics added.)

In this case, at the time Officer Breegle decided to impound defendant’s car, 

he did not intend to arrest defendant. Because defendant did not have a valid 

driver’s license but nonetheless was driving, there was danger that he would 

continue to drive his car. Therefore, it was reasonable for Officer Breegle to 

impound the car to ensure that defendant did not get back into his car and drive off

as soon as the officer left. 

D. Increased Base Mandatory Minimum Sentence on Murder Count

Section 190, subdivision (a) provides in relevant part: “Except as provided 

in subdivision (b), (c), or (d), every person guilty of murder in the second degree 

shall be punished by imprisonment in the state prison for a term of 15 years to 

life.” Under subdivision (d), the term for second degree murder is increased to 20 

years to life “if the killing was perpetrated by means of shooting a firearm from a 

motor vehicle, intentionally at another person outside of the vehicle with the intent 

to inflict great bodily injury.” (§ 190, subd. (d).) Defendant was sentenced to 20 

years to life in prison for the second degree murder of Vasquez. He contends on 

appeal that this sentence is unauthorized because the jury was not asked to make 

the findings required to impose the increased mandatory minimum term. We find 

that the trial court’s failure to instruct the jury and obtain findings necessary to 

impose the increased term under section 190, subdivision (d) was harmless beyond 

a reasonable doubt.

“Other than the fact of a prior conviction, any fact that increases the penalty 

for a crime beyond the prescribed statutory maximum must be submitted to a jury, 
17

and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 

466, 490.) Similarly, any fact that increases the mandatory minimum sentence also 

must be submitted to a jury and proved beyond a reasonable doubt. (Alleyne v. 

United States (2013) ___ U.S. ___ [133 S.Ct. 2151, 2155].) Failing to submit a 

sentencing factor to the jury, however, is not structural error, and does not require 

reversal if the error is found to be harmless beyond a reasonable doubt. 

(Washington v. Recuenco (2006) 548 U.S. 212, 222; Neder v. United States (1999) 

527 U.S. 1, 15.) 

Here, although the jury did not make express findings as to defendant’s 

intent with regard to Vasquez, by finding defendant guilty of the attempted 

murders of Lopez and Mendoza the jury necessarily found that defendant intended 

to kill both of them. Having found that defendant intended to kill the two 

passengers, it follows that the jury necessarily found he intended to kill Vasquez as 

well, since the three men were sitting in a single line, with Vasquez closest to 

defendant. 

In reaching this conclusion, we acknowledge that the jury was instructed on 

the prosecution’s two theories for finding defendant guilty of first degree murder, 

including intentional drive-by murder -- defined in section 189 as “any murder 

which is perpetrated by means of discharging a firearm from a motor vehicle, 

intentionally at another person outside of the vehicle with the intent to inflict 

death” -- and acquitted defendant of first degree murder. But we note that defense 

counsel, in his closing argument, erroneously argued that the absence of 

premeditation and deliberation required a finding of second degree, rather than first 

degree, murder. Thus, the jury could have found that defendant intended to kill 

Vasquez, but acquitted him of first degree murder “‘through mistake, compromise, 

or lenity.’” (People v. Santamaria (1994) 8 Cal.4th 903, 911.) 
18

In light of the overwhelming evidence presented, and the jury’s verdicts 

finding defendant guilty of the attempted murders of Lopez and Mendoza, we find 

the failure to submit the element of intent to inflict great bodily injury to the jury 

was harmless beyond a reasonable doubt.

E. Admission of Entire Recording of Diana Villeda’s Interview

As noted, Detective Carrillo identified Diana Villeda as the person who may 

have been the passenger in the Honda at the time of the shooting, and asked her to 

come to the police station to be interviewed. During that first interview, she 

described the shooting and said that defendant was the shooter. She later recanted, 

and said that Roger May was the shooter. Defendant called her as a witness at 

trial, where she testified that May was the shooter. Defense counsel asked her

during direct examination why she told Detective Carrillo during her first interview 

that defendant was the shooter. She said that when she was asked to speak with the 

detectives, she thought it was about something else; when they asked about the 

shooting, she did not say it was May because she felt threatened by May’s family.

The prosecution played the recording of that interview during crossexamination. Before the recording was played, defense counsel objected to 

playing the final minutes of the interview (represented on the last two pages of the 

transcript of the recording), when, in response to Diana’s statement that she 

thought she had been called in to talk to the detectives about a different incident,

Detective Carrillo said, “Actually I’m going to be honest with you, it’s a series of 

things that [defendant] has been doing, it included the shooting on Silver Lake, the 

incident in front of your house with your mom and Byron’s brother, the gun he 

recently got arrested with in his car, and there is a couple other things. [Defendant] 

has been busy, and that is why my partner was asking if he bragged to you about 
19

any other stuff that he might have gotten away with.” The trial court overruled the 

objection, and allowed the entire tape to be played. 

On appeal, defendant argues the trial court abused its discretion by allowing 

the final part of the interview to be played for the jury, because Detective Carrillo’s 

suggestion that defendant had committed other bad acts was irrelevant and 

prejudicial. We need not determine whether admission of Detective Carrillo’s 

statement was erroneous, because even if we assume error we find the admission 

was harmless.

We review the assumed evidentiary error under People v. Watson (1956) 46 

Cal.2d 818, 836, and determine whether it is reasonably probable that, in the 

absence of the error, a result more favorable to defendant would have been 

reached. (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.) We conclude that

no such probability exists here. 

There can be no prejudice caused by Detective Carrillo’s reference to the 

shooting on Silver Lake or the gun found in defendant’s car, because those are two 

of the acts for which defendant was on trial. The third “bad act” that Detective 

Carrillo mentioned was the incident that Diana believed was the reason she had 

been asked to speak with the detectives. And that incident not only had been 

discussed earlier in the interview, but by Diana’s description, defendant had been 

coming to the aid of Diana’s mother.14 Finally, Detective Carrillo’s reference to “a 

couple other things” that defendant purportedly had done recently was so vague 

and fleeting that it could not have caused prejudice. 

 

14 The interview began with Detective Carrillo asking Diana about a complaint that 

apparently was made by the brother of Diana’s baby’s father against defendant. Diana 

told the detectives that the father’s family was angry that Diana was asking for child 

support, and the brother came to the house and was making a scene. She said that the 

brother tried to hit her mother just as defendant was driving by, and that defendant 

stopped and got out of the car because he thought the brother had hit her mother. 
20

F. Habeas Corpus Petition

In his petition for writ of habeas corpus, defendant asserts that his trial 

counsel rendered ineffective assistance by failing to bring in the trial court a 

motion to suppress the gun found in his car. We disagree.

“To prevail on a claim of ineffective assistance of counsel, a defendant 

‘“must establish not only deficient performance, i.e., representation below an 

objective standard of reasonableness, but also resultant prejudice.”‘ [Citation.] . . . 

[P]rejudice must be affirmatively proved; the record must demonstrate ‘a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury

(2003) 30 Cal.4th 342, 389.) The Supreme Court has instructed that a court 

deciding an ineffective assistance claim “need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies. The object of an ineffectiveness 

claim is not to grade counsel’s performance. If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we 

expect will often be so, that course should be followed.” (Strickland v. 

Washington (1984) 466 U.S. 668, 697; In re Cox (2003) 30 Cal.4th 974, 1019-

1020.) 

We conclude that defendant did not suffer prejudice as a result of his trial 

counsel’s failure to bring the motion to suppress in the trial court. In attempting to 

show prejudice from his counsel’s purportedly deficient performance, defendant 

makes the same argument that he made on appeal, i.e., that evidence of the gun 

found in his car should have been suppressed because Officer Breegle’s decision to 

impound his car was unreasonable. As we explained in Section C., ante, it was 
21

reasonable for Officer Breegle to impound the car in light of the circumstances at 

the time he made the decision to impound. Therefore, even if defense counsel had 

properly brought the motion to suppress, it would not have been successful.

DISPOSITION

The judgment is affirmed, and the petition for writ of habeas corpus is 

denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant

 to article VI, section 6 of the California Constitution.