1 Filed 7/3/14 P. v. Delacruz CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL WAYNE DELACRUZ, Defendant and Appellant. E058118 (Super.Ct.No . SWF10001241) OPINION

APPEAL from the Superior Court of Ri verside County. Michael J. Rushton, Judge. Affirmed. Raymond M. DiGuiseppe, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assist ant Attorney General, Barry Carlton, and Adrianne S. Denault, Depu ty Attorneys Gene ral, for Plaintiff and Respondent.2 I INTRODUCTION On January 17, 2013, a ju ry convicted defendant and appellant Michael Wayne Delacruz of the first degree murd er of Ruben A. under Penal Code 1 section 187, subdivision (a), and found true a drive-by shooting special circumstance under section 190.2, subdivision (a)(21) and a personal gu n use enhancement under sections 12022.53, subdivision (c) and 1192.7, subdivision (c)(8). The trial court sentenced defendant to life without the possib ility of parole and imposed a consecu tive twenty-year se ntence for the firearm enhancement. On appeal, defendant cont ends that the trial cour t erred in admitting gang evidence. For the reas ons set forth below, we affirm the judgment.
II STATEMENT OF FACTS In the early morning hours of May 31, 2010, Ruben A. (the victim), who was fourteen years old at the time, was with so me friends outside his cousin’s apartment on N. Alessandro Street in Hemet. Another apartment occupant was outside smoking when a sport utility vehicle (SUV) passed the apartm ent complex; defendant kicked the rear passenger door open and fired double aught bu ckshot from a shotgun. All nine shotgun pellets from the cartridge hit the victim in his torso, shredding his liver, splitting his right kidney, and severing his spinal cord. The victim died.

1 All statutory references are to the Penal Code unless otherwise indicated.3 One of the victim’s friends, in the apartm ent complex’s front yard, fired birdshot from a shotgun at the SUV as it drove away. The BB-sized birdshot struck the SUV’s passenger side rear taillight, side panel, a nd the inside of the rear passenger door. Defendant was struck in hi s right arm and left hand. Defendant was arrested a fe w days later. After being read his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant spoke with detectives. Defendant admitted that he fired the s hotgun that killed the victim. Defendant’s interview was videotaped and played for the jury.
III ANALYSIS
A. The Trial Court Properly Admitted Evidence Defendant contends that th e trial court prejudicially erred in admitting evidence that defendant’s brother yelled “Hemet Trece,” prior to and during the drive-by shooting, and allowing a detective to testify that Heme t Trece was the name of a criminal street gang. Even if the evidence were properly admitted, defendant contends that the admission of this evidence was prejudicial beca use without this evid ence, the jury could have accepted defendant’s self-defense or imperfect self-defense theory.4 1. Background In his interview with detectives, de fendant said his fiancée Maria Lemus 2 and his brother Fernando Becerra had gone to Depo t Deli and encountered the victim and his friends. According to defend ant, someone in the group tr ied to punch Becerra. When Lemus tried to drive away in her SUV, they blocked her way, called her names, and threw beer cans at the SUV. Shortly before the shooting, Lemus dr ove her SUV to the apartment complex where the victim was staying. Becerra ju mped out of the SUV shouting “Hemet Trece,” obscenities, and other things. Becerra warned th at he would be back before he got into the SUV and it drove away. Defendant was home asleep when Lemus a nd Becerra came and got him. With Lemus driving, they returned to the apartment complex. When they turned onto Alessandro Street, defendant was sitting in th e rear passenger seat. They passed a male pedestrian, and defendant poi nted a shotgun at him thro ugh the open SUV door and yelled, “What’s up ese.” This caused the man to dive for cover. As the SUV continued down the street with its lights off, defendant shot the victim.

2 Lemus was a co-defendant charged with murder; she was driving the SUV during the drive-by shooting that killed the vic tim. Prior to defendant’s trial, she pled guilty to voluntary manslaughter.5 2. There was no error The People contend that defendant has fo rfeited this argument by failing to object to the evidence. We need not address this issue because defendant’s argument fails on the merits; admitting the referen ce to Hemet Trece was proper. 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 inferenc e” to establish material facts such as identity, intent or motive. ( People v. Bivert (2011) 52 Cal.4th 96 , 116-117.) Only relevant evidence is admissible , and, except as otherwise provided by statute, all relevant evidence is admissible. (Evi d. Code, §§ 350, 351.) “[T]he trial court has broad discretion to determine the relevance of evidence.” ( People v. Cash (2002) 28 Cal.4th 703, 727.) This discretion extends to evid entiary rulings made pursuant to Evidence Code section 352. ( People v. Tully (2012) 54 Cal.4th 952, 1010.) Evidence Code section 352 provides: “T he court in its discretion may exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury .” “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of tim e. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exerci se of that discretion ‘m ust not be disturbed on6 appeal except on a showing that the court exerci sed its discretion in an arbitrary, capricious or patently absurd ma nner that resulted in a manife st miscarriage of justice. [Citations.]’ [Citation.]” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, italics in original.) It is defendant’s burden on ap peal to establish an abuse of discretion and prejudice. ( People v. Jordan (1986) 42 Cal.3d 308, 316.) In this case, the evidence was relevant and highly probative. Defendant had previously lived on Inez Street, which is cl ose to the apartment complex on Alessandro Street. Individuals who lived in the Alessa ndro apartment complex knew Lemus, Becerra and defendant; one of the witnesses was th e mother of Becerra’s child. After the confrontation with Becerra and Lemus at the Depot Deli, Ruben A. and his friends must have returned to the Alessandro Street apartmen t complex. It is reasonable to infer that Becerra, angered by the Depot Deli incident , had Lemus drive him to the Alessandro apartment complex. Becerra then yelled He met Trece and obscenities in front of the apartments and warned that he would return. Lemus and Becerra returned to their hom e and woke up defendant. Instead of brushing off the confrontation that occurred at Depot Deli, defendant worried about his reputation and what would happen the next time he or Lemus was seen by these individuals. He refused to allow the in sult suffered by his fiancée and brother to go unaddressed. Arming himself with a shotg un, defendant returned to the Alessandro apartment complex with Lemus and Becerra. The fact that Becerra yelled Hemet Trec e, which a detective explained was a “commonly known criminal street gang” in He met, was relevant to help explain why7 defendant would react as he did upon learni ng of the Depot Deli incident, instead of letting the incident go. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.) Here, in the middle of the night, after be ing awakened and told about the Depot Deli incident, defendant’s reaction was to get a s hotgun, travel the short distance to the Alessandro Street apartments, and commit a drive-by shooting; killing an unarmed 14- year-old boy. The yelling of a criminal street gang’s name displayed a mindset that slights or offenses, regardless of how mino r, would not go unaddre ssed, but would be avenged. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Moreover, this evidence also countered de fendant’s claim that he fired the shotgun to defend himself. The evid ence showed that th e SUV drove down th e street with its lights off. Defendant did not merely point the shotgun ou t the window to “scare” the people in the apartments’ front yard. He kicked open the SUV d oor, allowing him to fully wield the weapon. This evidence, coupled with the calling out of a criminal street gang’s name, showed that defend ant intended to kill. This was not a case of self-defense. Notwithstanding defendant’s argument to the contrary, as discussed above, the evidence was relevant and high ly probative to show defe ndant’s motive for committing the drive-by shooting. The analysis does not end there. We no w need to determine whether the probative value was substantially outweighed by the probability that the admission necessitated undue consumption of time or created a s ubstantial danger of undue prejudice, of confusing the issues, or of misleadin g the jury. (Evid. Code, § 352.)8 Here, the admission of the evidence did not necessitate undue consumption of time. As discussed above, the evidence show ed that defendant’s brother yelled “Hemet Trece” prior to and during a drive-by shooting, and a brief explanation that this was the name of a criminal street gang in Hemet gave context to these words. Even defendant cannot argue that this nece ssitated an undue consumption of time during trial. Also, there was no substantial danger of und ue prejudice, confusing the issues or misleading the jury. Here, instead of confus ing the issues or misl eading the jury, the evidence clarified the issue. In stead of allowing the jury to speculate as to what “Hemet Trece” meant, the trial court properly permitte d a brief explanation that it was the name of a criminal street gang in Hemet. The trial court carefully limited the detective’s testimony to just this explana tion, nothing more. Additiona lly, as will be discussed in more detail below, there was no undue prejud ice as the gang reference was presented to explain defendant’s mindset in returning to the apartments to avenge what he believed to be an insult to his fiancée and brother at the Depot Deli. The prosec utor did not elaborate on the gang reference as to color defendant as a gang-banger. Here, the evidence was clear that defendant fired shots in a callous manner. There was no substantial danger of undue prejudice. Even assuming that the trial court erred in admitting the evid ence, the error was harmless. The People contend that the Watson standard of review applies. ( People v.
Watson (1956) 46 Cal.2d 818, 836.) Defendant contends that th e federal standard applies under Chapman v. California (1967) 386 U.S. 18, 23. Howe ver, most evidentiary errors do not rise to the level of a constitutional violation because they do not affect the9 fundamental fairness of a trial. ( People v. Boyette (2002) 29 Cal.4th 381, 428 [ Watson standard applies to prejudicial error anal ysis for state law errors, while beyond a reasonable doubt standard of Chapman applies to federal constitutional errors].) Absent fundamental unfairness, the st ate law error in admitting ev idence is subject to the traditional Watson test. ( People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson , supra , 46 Cal.2d at p. 836.) Here, the allege d error did not rende r defendant’s trial fundamentally unfair. Hence, the Watson standard applies. Defendant contends that th e admission of this eviden ce was prejudicial because without this evidence, the jury could have accepted defenda nt’s self-defense or imperfect self-defense theory. We disa gree. The evidence regarding the reference to Hemet Trece was brief and tangential. The evidence that defendant armed himself and went back to the Alessandro apartments – after he, his fi ancée and brother were all safe – does not support his self-defense theory . As the prosecutor pointed out during closing argument – as presented in the evidence du ring the trial – (1) defendant shot and killed the victim; (2) defendant fired the gun from the SUV; (3) the victim did not have a gun; and (4) defendant was at home, in a safe place, prior to the shooting – he was not being threatened by any individual prior to ma king a decision to come to the Alessandro apartments. We agree with the prosecutor’s analysis rega rding self-defense: “I think that when you talk about self-defense, you are talking about something that’s fundamental to who we are, the ability to defend ou rself [sic] against others, the ability to defend our family, our friends, against lethal force being used against us. It’s fundamental to who we are as10 Americans. It’s fundamental to who we are as human beings, the idea that we can defend ourself [sic]. Without that, we are really not free. [¶] That’s why I take exception to self-defense being used in a situation where somebody rolls up to somebody else’s house, kicks open the back door of their car, and points a lo aded shotgun at somebody and then claims I’m the victim. I’m defending myself. Because that’s now what the self-defense law was created for, and the law recognizes that , and it has these principles that limits its usefulness. One of those principles, the most important principle I think, is that you can’t be what is called the initial aggressor and th en claim self-defense. It doesn’t make
sense.” Nowhere during closing argument does the prosecutor mention “Hemet Trece” or any gang affiliation. During his rebuttal, however, the prosecutor did mention that defendant’s brother came by and yelled “Hemet Trece, we’ll be back[,]”{RT 291} when mentioning that defendant and his cohorts ch ose to return to th e apartments with a shotgun after the initial incident at Depot Deli was over. The prosecutor did not mention any gang involvement by defendan t or elaborate on Hemet Trece. Although defendant tries to make this a “close” case where brief mention of Hemet Trece affected the outcome of the case, we find nothing in th e record to support this argument. Here, because defendant has failed to establish a re asonable probability of a more favorable outcome absent its admi ssion, any alleged erro r in admitting this evidence is harmless. ( People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People
v. Watson , supra , 46 Cal.2d at p. 836.)11 IV DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J.
We concur:

RAMIREZ P. J.

CODRINGTON J.