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Filed 7/1/16 P. v. Salgado CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN M. SALGADO,

Defendant and Appellant.

 A141831

 (S.F. City & County

 Super. Ct. No. 221361-01)

Marvin M. Salgado appeals from a judgment upon a jury verdict finding him 

guilty of assault with a deadly weapon, a bat, with the allegation that defendant 

personally inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(1); 12022.7, 

subd. (a)) and felony battery with a serious injury with the allegation that defendant 

personally used a deadly weapon (Pen. Code, §§ 243, subd. (d); 12022, subd. (b)(1)).

The jury acquitted defendant of an attempted murder charge. Defendant contends that the 

trial court abused its discretion in excluding evidence that his former co-defendant 

pleaded guilty to assaulting the victim and that he admitted he “hit a black guy last night” 

in a jailhouse phone call. We affirm.

I. FACTS

At about 4:15 a.m. on October 6, 2013, Troy Perkins had a dispute with Darlin 

Uvence-Cruz (Cruz), whom Perkins knew as “Larry.” Perkins testified that Cruz was 

drunk and attempting to cheat him in a deal on his recyclables, so he hit Cruz in the jaw. 

After that incident, Perkins walked on Folsom Street, toward 14th Street and the Foods 

Co. store, and saw Cruz and defendant. Cruz and defendant had “shiny” baseball bats 
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and proceeded to hit Perkins in the head. He fell to the ground. Perkins was in a coma 

for four days and spent twelve days in the hospital. On November 7, 2013, he identified 

defendant and Cruz in two separate photograph lineups. He said that he often saw them 

together. 

Mohamed Bagadi witnessed the incident. He was on a break from his job at 

U.C.S.F. Medical Center and was smoking a cigarette on Folsom Street. His co-worker, 

Sunny Bang, was with him. He saw two men and a woman walking on Folsom Street 

with shopping carts going toward the Foods Co. He then saw two men, one of whom he 

identified as defendant,1 walk toward the three people. Defendant and the other man

were each holding an object. One man was holding an aluminum bat; the other man held 

an object, but Bagadi could not identify it from his vantage point. Bagadi saw defendant 

and the other man chase after one of the men from the threesome he saw walking on 

Folsom Street. Defendant and the other man hit the man from the threesome with the 

baseball bat and the other object. Bagadi screamed at them to stop. A U.C.S.F. police 

officer responded to the scene and asked defendant to drop the bat. Defendant was 

arrested. 

Bang also worked at U.C.S.F. Medical Center and took a break with Bagadi 

shortly after 4:00 a.m. on October 6, 2013. He saw three people, who appeared to be 

homeless, pushing shopping carts down Folsom Street toward 14th Street. A few 

minutes later, he saw two men, each carrying a long object in their hand, walking quickly 

as if trying to catch up to someone. The two men pursued one of the three homeless 

people and struck him in the head with bats. One of the men had an aluminum bat while 

the other had a wooden bat or a piece of wood about the size of a bat. Bang called 911 

while Bagadi yelled at the men to stop. An officer from a nearby building responded to 

the commotion. One of the men fled. The other one approached the officer; he had a 

metal bat. He complied with the officer’s demand to put the bat down. Bang was unable 

to identify defendant or the other perpetrator in a photographic lineup or at trial. He 

 

1 Bagadi testified that defendant was the man he saw being arrested on the 

morning of the incident. He was otherwise unable to identify him in court. 
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testified only that the U.C.S.F. officer arrested the person he saw with the aluminum bat 

on the morning of the incident. 

U.C.S.F. Officer Stephen Lee responded to the scene. When he arrived, another 

officer had already handcuffed defendant. A baseball bat was lying on the ground 

nearby. In a search of defendant, Lee found a parking ticket that the police used to 

broadcast the license plate number of a vehicle that left the scene. 

In response to the broadcast, the police stopped a truck a couple of blocks away. 

Lee took a witness there to participate in an in-field identification. The witness identified 

Cruz. In a search of the truck and the surrounding area of the incident, Lee did not find 

any other baseball bats. The police found a shirt with blood on it in the truck. 

U.C.S.F. Officer Mary Snider investigated the incident. She visited Perkins in the 

hospital a week after the incident, but due to Perkins’s altered mental status, she did not 

interview him. She later interviewed Perkins on November 7, 2013. Snider showed 

Perkins two different photographic lineups. Perkins identified defendant in one of the 

photographic lineups, and Cruz in the other, as the men who attacked him. 

Snider also reviewed the video surveillance footage obtained from the Foods Co. 

store and obtained a still photographic shot from the video. That still shot showed 

defendant and Cruz. In the photo, defendant’s clothing matched the clothing he was 

wearing upon his arrest, while Cruz was wearing a different shirt. The shirt shown in the 

still shot, however, matched the shirt found in the truck. The still shot also showed Cruz 

with a metallic baseball bat, while defendant was carrying what appeared to be a wooden 

object. In addition, the surveillance video showed Cruz running from the scene with a 

baseball bat in his hands. The surveillance video was played for the jury. 

During cross-examination, Perkins denied that he was a violent person. He 

testified that he could not remember an incident in which he beat an unarmed woman, 

and that he did not attack a security guard, but that the security guard attacked him. He

later acknowledged that he was arrested for the incident with the unarmed woman. He 

also admitted that he was convicted of a felony for drug sales. 
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The parties stipulated that Perkins was hospitalized from October 6, 2013 to 

October 18, 2013. He was treated for bilateral contusions to his face, lacerations to his 

scalp and face, orbital and occipital skull fractures, and a subdural hematoma. The 

parties also stipulated that San Francisco Police Officer Goss, while on patrol on 

September 17, 2005, saw Perkins kick a woman in the abdominal area at least four times 

while she was lying on the ground in a fetal position. 

Defendant testified that he is 36 years old and attended elementary school in 

Honduras. He denied hitting Perkins. He claimed that he told Cruz to stop hitting him. 

On the day of the incident, defendant was working with Cruz in his recycling business by 

helping him load recyclables while Cruz negotiated with people on price. They finished 

working at about 4:00 a.m. At that point, Perkins approached Cruz and asked him if he 

could buy his recyclables. Defendant had known Perkins for about two months from his 

involvement in the recycling business and found him to be an aggressive and violent 

person. He had observed Perkins getting into fights with others. He knew Perkins 

carried knives, pieces of wood with filed points, golf clubs, and bats in his shopping cart. 

Cruz and Perkins argued because Perkins insisted that Cruz buy his recyclables but 

Cruz could not accommodate any more merchandise in his truck. Cruz showed him some 

change, indicating that he did not have enough money to buy Perkins’s recyclables. 

Perkins took the money and punched Cruz in the eye. Cruz appeared to be stunned and 

then went to his truck and retrieved a bat. Cruz pursued Perkins. Defendant followed 

them and urged Cruz not to get into any trouble. Defendant was carrying a tall Bud Light 

beer in a paper bag. Cruz continued to pursue Perkins and demand that he be given his 

money back. Cruz caught up to Perkins and hit him in the back with the bat. Perkins fell 

to the ground. Cruz hit him a second time in the head. Defendant told Cruz to leave 

Perkins alone and that he was going to kill Perkins, but Cruz continued to hit Perkins 

until defendant was able to get the bat away from him. Defendant then heard someone 

yell, “hey.” Defendant saw a police officer and walked toward him. He did not try to 

explain the incident to the police officer because he does not speak English. 
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Defendant also presented three character witnesses who testified he was a 

nonviolent person. 

II. DISCUSSION

Defendant first contends that the trial court erred in precluding him from 

introducing into evidence Cruz’s guilty plea, allocution, and jailhouse admission in a 

phone call he made on the evening of his arrest that he “hit a black guy last night.” He 

argues that the evidence was admissible as third party culpability evidence. 

Cruz was charged as a co-defendant in this case but reached an agreement with the 

prosecutor during jury selection. Defendant thereafter requested that the court take 

judicial notice of the plea and allow it, and Cruz’s admission during the plea proceedings 

that he assaulted Perkins using a deadly weapon, into evidence. The prosecutor argued 

that defendant was not entitled to introduce just Cruz’s statement implicating himself but 

would be required to include Cruz’s entire allocution—“that he participated in the 

baseball bat beating of the victim with Mr. Salgado”—thus implicating defendant in the 

beating. The prosecutor also opposed the admission of the jailhouse telephone statement, 

arguing it was inadmissible hearsay. 

The court denied defendant’s motion, finding that under Evidence Code 

section 352, the fact that Cruz pled guilty was more prejudicial than probative, and that it 

would be potentially confusing to the jury. The court reasoned that the jury might be 

inclined to assume guilt by association and not necessarily, as defendant argued, that the 

co-defendant was the sole culprit. The court took the issue of the admissibility of the 

jailhouse call under submission. 

Prior to the court’s instructions to the jury, defendant raised the issue of calling 

Cruz as a witness. The court reiterated that due to potential confusion for the jury and 

prejudice to the defendant, it would not permit defendant to call Cruz as a witness and 

ask him about his plea or allocution. The court further noted that as Cruz was still in 

custody facing other charges that had not yet been dismissed, and had not yet been 

sentenced following his plea to the other charges, it was highly unlikely that his defense 

counsel would permit him to testify. The court stated that it had not ruled on the 
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jailhouse statement as defendant indicated he was not going to call Cruz as a witness. 

The parties thereafter agreed to stipulate that Cruz made a jailhouse call to a family 

member and said, “I hit a black guy last night.” 

The stipulation about the jailhouse call was not read to the jury. The issue was 

discussed in the following colloquy: “[MR. CLARK (Assistant District Attorney)]: 

Okay. [¶] So with regard to the jail phone call stipulation, on the night that Mr. Cruz was 

arrested he made a phone call from jail to a woman. They spoke in Spanish . . . . [¶] . . .

But he stated apparently I am in jail. The woman replies, ‘What happened?’ He says, ‘I 

hit a black guy last night’ and ‘the police caught me and Kuki,’ K-U-K-I. [¶] [THE 

COURT]: Can I ask you before you continue, we did reach a stipulation on this, didn’t 

we? [¶] [MR. CLARK]: We haven’t articulated it on the record. [¶] [THE COURT]: 

Okay. [¶] [MR. CLARK]: And so I mentioned to Ms. Lacambra [(Deputy Public 

Defender)] that over the lunch hour, whatever break, I went and looked again at the 

Spanish interpretation that was supplied regarding the statement that Mr. Cruz made from 

jail, that is that—and recall I said that I would stipulate because we were having a 

problem figuring out—I don’t know if we were but there was an issue regarding the 

availability of Mr. Cruz, et cetera and some of the issues around his Fifth Amendment 

privilege. But when I looked at it again, that he said they caught me and Kuki. That’s 

something that perhaps it would be better if he were here to talk about, to be crossexamined about why he said that. That’s one issue, we can pick it up at another time. 

[¶] Then he— [¶] [THE COURT]: Well let me ask you this. What was the first part of 

that, he says ‘I hit a black guy last night’? [¶] [MR. CLARK]: He says ‘I hit a black guy 

last night’ and— [¶] [MS. LACAMBRA]: And then he gets cut off. [¶] [MR. CLARK]: 

Then ‘The police caught me and Kuki.’ [¶] [THE COURT]: What’s different about that? 

They did catch him and somebody else. And he admits he hit a black man the night 

before. I don’t see that there is any difference. Okay? [¶] [MR. CLARK]: An issue— 

[¶] [THE COURT:] Well maybe we will resolve it right now. But let’s go on. What’s 

the next issue?” There is no further discussion of the jailhouse call in the record. 
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As the Attorney General argues, defendant waived any issue concerning the 

admission of the jailhouse call. He did not obtain a final ruling from the court on the 

admissibility of the call. “[T]he absence of an adverse ruling precludes any appellate 

challenge.” (People v. McPeters (1992) 2 Cal.4th 1148, 1179.) Moreover, it is likely 

that defense counsel had a tactical reason for not further pursuing a stipulation with the 

prosecutor about the evidence in light of Cruz’s additional statement in the jailhouse call

that the police caught him with Kuki. In any event, defendant did not preserve the issue 

for review. (Ibid.; People v. Rowland (1992) 4 Cal.4th 238, 259.)

The court, further, did not abuse its discretion in excluding Cruz’s plea and 

allocution from evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 717–718 [we 

review the trial court’s ruling on evidentiary issues for abuse of discretion].) In People v. 

Hall (1986) 41 Cal.3d 826, 833, our state Supreme Court held that to be admissible,

“third-party evidence need not show ‘substantial proof of a probability’ that the third 

person committed the act; it need only be capable of raising a reasonable doubt of 

defendant’s guilt.” The evidence must meet the minimum standards of relevance; “there 

must be direct or circumstantial evidence linking the third person to the actual 

perpetration of the crime.” (Ibid.; People v. McWhorter (2009) 47 Cal.4th 318, 368.) 

The evidence is also subject to exclusion under Evidence Code section 352. (Hall, supra, 

41 Cal.3d at pp. 833–834.) 

The trial court did not abuse its discretion in finding that the evidence was 

excludable under Evidence Code section 352. While the evidence would have shown that 

Cruz was guilty of assaulting Perkins, it did not absolve defendant of the charged crimes. 

Indeed, as the prosecutor argued below, defendant was not entitled to introduce only 

Cruz’s admission that he assaulted Perkins but would have had to include Cruz’s entire 

allocution, which implicated defendant, as well. As the trial court found, the evidence 

thus had a tendency to be more prejudicial than probative. (See People v. Leonard

(1983) 34 Cal.3d 183, 188–189 [admission of co-arrestee’s guilty plea prejudicial as it 

invited an inference of guilt by association].)
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Further, the evidence implicating defendant was also admissible pursuant to 

Evidence Code section 356. That section specifically permits an adverse party to inquire 

into the whole of a declaration, conversation, or writing when only part of it is offered by 

a party into evidence. “The purpose of this section is to prevent the use of selected 

aspects of a conversation, act, declaration, or writing, so as to create a misleading 

impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.) In 

sum, had Cruz’s allocution been admitted, the jury would have learned that Cruz pled 

guilty and that defendant participated in the assault. The prejudicial effect of this 

evidence outweighed any probative value that the fact of Cruz’s guilty plea could have 

offered defendant.

III. DISPOSITION

The judgment is affirmed.

_________________________

Rivera, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Streeter, J.