THE PEOPLE v. RICARDO JIMENEZ SALAZAR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. RICARDO JIMENEZ SALAZAR, Defendant and Appellant.

F060086

Decided: August 23, 2011

 * APPEAL from a judgment of the Superior Court of Kern County.   Kenneth C. Twisselman II, Judge.   Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Defendant Ricardo Jimenez Salazar was convicted of first degree murder.   It was found he personally discharged a firearm resulting in great bodily injury or death, personally used a firearm, and suffered a prior serious felony that qualified as a strike.   He was sentenced to prison for 75 years to life.   He claimed at trial that he shot and killed the victim in self-defense.   He appeals asserting the trial court abused its discretion when it allowed the prosecution to impeach him with prior convictions he claims were remote in time.   We affirm.

Defendant lived in an apartment in Kern County.   Anahi Ayala, Juan Carlos Covarrubias, and their four children lived in the apartment next to his.   Victoria Diaz lived in a house in front of the apartments.   Sandra Ortiz lived across the street.   The victim, Juan Lopez, was a long-time friend of Ayala and Covarrubias.

On the afternoon of Saturday, May 23, 2009, Covarrubias and defendant were drinking beer outside.   Defendant had a gun.   Covarrubias told him to give the gun to him, put it away, or leave.   Defendant agreed to put it away.

On that same day, after dark, Lopez arrived at the Covarrubias and Ayala apartment.   Ayala and the children were inside;  Covarrubias and defendant were outside.   Ayala looked outside and saw Covarrubias and Lopez were throwing a can of beer at each other, playing.   Ayala went outside, put her hand on Lopez's chest, moved him toward a car in the yard, and asked him what he was doing.   Ayala was holding her year-old baby and her six-year-old daughter was hugging Lopez by the waist.   Her three-year-old daughter got into the car and turned up the stereo.   Defendant left and went inside his apartment.   Defendant came back out of his apartment.   Covarrubias was bending down attending to the three-year-old because her legs got pinched in the car door.   Lopez's hands were to his sides.   Defendant shot Lopez.   Because Ayala's hand was on Lopez's chest, her arm became hot and burned.   The pain caused her to pull her hand away from Lopez.   Lopez fell to the ground.   Ayala and Covarrubias gathered the children and ran into their apartment.   Ayala suffered a burn to her arm.

After the shooting, defendant knocked on Diaz's door and asked to use the phone because he had killed someone.   She told him to leave.   Defendant walked across the street to Ortiz's house.   Ortiz had a gathering at her house to celebrate her daughter's baptism.   Defendant asked someone in the group to call 911 because he had just killed someone.   He pulled a gun from his waistline and put it on the ground.   He then walked away and sat down.   When law enforcement arrived, he was arrested without resistance.

Ambulance workers cut off Lopez's shirt and left it on the ground.   They took Lopez from the scene.   A small pocket knife, two to three inches long, was found under the bloody shirt.

Lopez had three gunshot wounds:  one behind his right eye and two to his right chest.   The shots were fired from at least two feet away.   He died from the gunshot wounds.   He had methamphetamine and alcohol in his system.

Covarrubias testified that one to two days before the murder Lopez had come over to his apartment.   Later, defendant asked Covarrubias if Lopez had a friend with a dark complexion.   Covarrubias did not know if Lopez and defendant had engaged in any conversation that evening.

Diaz testified that Lopez had been in the area on the Thursday before the shooting.

DEFENSE

Defendant testified that the day before the shooting, Lopez stared at him and asked what he had to do with his wife.   Defendant told him he did not know his wife.   Lopez told defendant that he does not play around and he was going to kill defendant.   Lopez said he was part of an organized group that kills people, the Zetas.   Defendant was afraid, he walked away, and Lopez said he would come back to kill him.

The next night when defendant saw Lopez, Lopez said he had come to do what he told him he would do;  kill him.   Defendant was afraid and went to his apartment and got his gun.   Defendant cursed at Lopez and told him to leave.   Lopez walked towards him while reaching back to his rear pocket.   Defendant shot Lopez and thought Lopez had a weapon.

After shooting Lopez, defendant knocked on one door and asked if he could use the phone.   After he was told to leave, he went to another house and asked someone to call 911.   He sat down a distance from the gun.

On cross-examination defendant admitted he was not legally allowed to possess a gun because he had been convicted in 1995 of a felony involving traits for truthfulness and dishonesty.   He also admitted that he was convicted in 1996 for possessing stolen property and in the same year convicted for being a felon in possession of a firearm.

Laura Negrete was attending the baptism party at Ortiz's home and had heard the shots fired.   When defendant came to the party and asked someone to call 911 he also said the victim had told him many times he was going to kill him and defendant said he killed the victim in self-defense.   Defendant also said he would rather kill the guy than get killed tomorrow.

Covarrubias said he had had a conversation with defendant and they talked about the Zetas.   Covarrubias also told law enforcement that the day before the murder defendant asked him if he knew a person who worked for the Zetas.   Lopez had never said anything to Covarrubias about being in the Zetas.

REBUTTAL

Sheriff detective Kavin Brewer interviewed defendant after the shooting.   Defendant was asked if Lopez had a weapon.   Defendant said it was dark and he did not see a weapon.   Defendant said that Lopez walked toward him with his hand in his pocket.   Defendant was afraid of future harm from Lopez.   When asked why he did not just stay inside his house and lock the door, defendant said he wanted it to end and he might as well end it.   Defendant also said he was not going to live like a chicken and always be afraid not knowing what was going to happen.   Defendant said that Lopez told him he came to do what he came to do and Lopez had threatened him with death two days before the shooting.   Defendant also said that if “someone threatens you and comes toward you, it's because he can do it.”   Defendant said that Lopez worked for the Zetas and they are assassins.

DISCUSSION

“ ‘Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment.   Together, they provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice.   [Citation.]’  [Citation.]   In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 [ (Beagle ) ]:  (1) whether the prior conviction reflects adversely on an individual's honesty or veracity;  (2) the nearness or remoteness in time of a prior conviction;  (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense;  and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions.  [Citation.]  These factors need not be rigidly followed.  [Citation.]”  (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)

The People sought to impeach defendant with three prior convictions, defendant opposed the use of the prior convictions for impeachment purposes.   The convictions included a 1995 felony conviction for criminal threats, a 1996 misdemeanor conviction for possession of stolen property and a 1996 felony conviction for possession of a firearm by a felon.   Defendant served a prison term starting in June 1996.   He was paroled in January 1997.   His parole was revoked and he was sent back to prison in February 1997.   He was again paroled in 1998 and discharged from parole in 2001.

It was defendant's position that all three convictions were too remote to be admitted for impeachment purposes, particularly because defendant had not had any convictions since he last violated his parole and his prison sentences were for short periods of time.

The trial court considered the subject of remoteness and the other relevant factors and exercised its discretion to conclude that the prejudicial effect of admission of the priors did not substantially outweigh the probative value.   In admitting the criminal threat conviction, the court ordered that it be sanitized to describe it as a felony conviction involving traits for honesty or truthfulness.   Defendant was impeached with his three prior convictions.

Defendant claims the trial court abused its discretion and violated his right to due process when it permitted the prosecution to use his prior convictions to impeach his testimony.   In particular, he asserts his prior convictions, that occurred 13 years or more before the current offense, were too remote to be probative of his present credibility especially since he had lived crime and incarceration free following his release from prison.

Convictions that are remote in time are not automatically inadmissible for impeachment purposes.   Courts have repeatedly allowed the use of remote convictions when the defendant has not led a legally blameless life since the time of the impeaching priors.  (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925–926.)

The remoteness of a conviction is just one relevant consideration.   While the convictions here were in 1995 and 1996, defendant violated his parole in 1997 and was not released from prison on parole until 1998.   Thus, over 11 years had passed since defendant was released from prison and, during that time he led a legally blameless life.   Remoteness, however, was one factor for the trial court to consider regarding the probative value of the priors.

Defendant does not contend that his crimes are not crimes involving moral turpitude, they are.  (People v. Littrel (1986) 185 Cal.App.3d 699, 703;  People v. Thornton (1992) 3 Cal.App.4th 419, 424.)   He does claim that the two felony convictions did not involve dishonesty which reduces their probative value.   His prior misdemeanor, however, was for possession of stolen property, which requires that the defendant have actual knowledge of the stolen character of property.  “ ‘In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity.’ ”  (Beagle, supra, 6 Cal.3d 441 at p. 453.)   Receiving stolen property is closely tied to theft and is thus closely related to crimes of dishonesty.

The convictions for possession of a gun and receiving stolen property were not similar to the current crime, their prejudice was thus lessened.   The trial court sanitized the criminal threat conviction to reduce its prejudicial value.

Defendant was not deterred by the admission of his prior convictions for impeachment;  he testified.

Defendant's credibility was very important to this case.   Defendant claimed self-defense, thus placing his credibility directly into question.  “ ‘No witness[,] including a defendant who elects to testify in his own behalf[,] is entitled to a false aura of veracity.’ ”  (People v. Muldrow (1988) 202 Cal.App.3d 636, 646.)

Balancing on all these factors, we cannot say the trial court abused its discretion.

Alternatively, we conclude the trial court's admission of the priors to impeach defendant did not prejudice defendant.   Such error is subject to a harmless error analysis.

It was not disputed that defendant shot Lopez.   Both Ayala and Covarrubias testified that defendant and Lopez did not exchange any words the evening of the shooting.   Although Ayala and Covarrubias were friends with Lopez, and were not friends with defendant, there was nothing about this friendship or relationship that would strongly suggest they would lie.   Their testimony of the events leading up to the shooting were consistent.   Ayala testified she had her hand on Lopez's chest and was pushing him backwards at the time the shooting occurred.   She had burn marks on her arm from the gunshot passing by her arm.   Her six-year-old daughter was hugging Lopez by the waist.   This evidence directly contradicted defendant's statement that Lopez was advancing on him when he shot him.   Defendant told law enforcement that he wanted to just end it and did not want to live like a chicken.   Thus, defendant's statements to law enforcement indicated that he did not fear that he was in immediate danger, but he feared possible future harm from Lopez.   Although a person is not required to retreat and may stand their ground when threatened with an attack, defendant did retreat and was safely inside his apartment when he decided to get his firearm, load it, and return outside to shoot Lopez.   This activity, admitted by defendant, weighs heavily in favor of the inference that defendant was not acting in self-defense because he was not in immediate danger.   While defendant's actions immediately after the shooting might indicate he acted in self-defense, they as easily could be interpreted as a person who has remorse immediately after shooting someone.   The evidence of self-defense was weak;  the evidence of murder was strong.   The impeachment of defendant with priors was harmless.

DISPOSITION

The judgment is affirmed.

THE COURT