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Filed 12/28/16 P. v. Ortiz CA4/1

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff and Respondent,
Defendant and Appellant.


(Super. Ct. No. SCN336399)

APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Hector Gustavo Ortiz of murder (Pen. Code,1 § 187, subd. (a); count 1) and two counts of attempted murder (§§ 187, subd. (a), 664; counts 2, 3). The jury also found true that Ortiz committed these crimes for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); while personally and intentionally discharging a firearm, proximately causing great injury and death while committing the subject crimes (§ 12022.53, subd. (d)); and Ortiz previously had been convicted of a serious felony within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c) as well as a strike prior within the meaning of sections 667, subdivisions (b) through (i), 1170.12, and 668. The superior court sentenced Ortiz to prison for a determinate term of 37 years and an aggregate indeterminate term of 105 years to life.

Ortiz appeals, contending the trial court prejudicially erred in preventing him from testifying that third parties told him that the murder victim had threatened Ortiz because Ortiz owed the victim money from a previous drug deal. We affirm.



On July 30, 2014, Ortiz and his fellow Westside criminal street gang members Omar Magadan and Erik Nieto met up in an alley on Eighth Street in Escondido. In Ortiz's car, the three men traveled to a grocery store on West Felicita to buy beer. Although the store was within territory claimed by the Westside gang, the three men usually frequented a different store. They chose this particular store so Nieto could use a nearby ATM to get cash. Nieto withdrew some money from the ATM, and the three men then walked toward the grocery store to buy some beer.

As they approached the grocery store, Nieto saw three non-Westside gang members leaving the store. Magadan, Ortiz, and Nieto followed the men toward an SUV.

The three men walking to the SUV were Wesley Smith, Miguel Fuentes, and Michael Grandys. Miguel's brother, Martin,2 was waiting at the SUV. These four men were members of the Eastside criminal street gang. Grandys had driven Smith, Miguel, and Martin in his SUV to the grocery store to redeem a gift card.

When Magadan approached the SUV, Grandys was grabbing his keys, about to get inside the car. The Fuentes brothers and Smith had just gotten into the car. Martin was in the front passenger seat, and Smith sat in the backseat behind the driver, and Miguel sat on the back passenger side. The front and back windows on the passenger side of the SUV were down.

Magadan walked to the rear passenger side and "hit up" Miguel by asking him, "Where are you from?"3 Miguel said "Eastside" and Magadan replied, "This is Westside," indicating that Eastside gang members were not supposed to be there. Then Magadan asked Miguel, "Are you tripping?" (do you have a problem). As Magadan and Miguel continued to verbally spar, Martin said something that caused Magadan to walk to the front passenger door. According to various witnesses at the scene, none of the occupants of the SUV were armed at that time, and no guns were ever found in the SUV.4

Ortiz then walked up to the SUV and began firing his semiautomatic .38 caliber handgun until the gun was empty (about seven to 10 rounds were shot). Ortiz first shot Miguel three times. The downward trajectory of one of the bullets, given both Ortiz's and the SUV's height, suggested that Ortiz fired at Miguel through the SUV's window. After shooting Miguel, Ortiz fired multiple rounds at Martin and Smith.

When Ortiz finished shooting the victims, he ran back to his car and waited for Magadan, who had the keys to the car, to join him. Ortiz and Magadan then left the scene in Ortiz's car, while Nieto, surprised and scared, ran away to a nearby restaurant. Ortiz and Magadan ultimately picked up Nieto and drove away from the parking lot.

Miguel, Martin, and Smith were all wounded as a result of being shot. After Miguel said he needed medical attention, Grandys drove him and Martin to the hospital, while Smith reentered the grocery store to wait for an ambulance.

Miguel died from one of the gunshot wounds, which pierced his lungs and lacerated a few veins, causing him to bleed to death. Martin received four gunshot wounds, one of which entered his back, fractured a rib, pierced one lung, and exited through the chest. Smith was shot in his left inner thigh while attempting to fasten his seat belt.

About 10 hours after the shooting, at around 6:00 a.m. on July 31, 2014, Ortiz and Magadan drove to a casino in Valley Center to "not to get caught." Photos taken on Ortiz's cell phone depicted him, Magadan, and one of Magadan's friends gambling and "throwing up gang signs" in the casino. That morning, they also used their phones to conduct web searches for information regarding the shooting. Ortiz then "laid low" in the nearby Valley Center campground, where he shaved his head to avoid being recognized. At some point between the shooting and his trial, Ortiz also acquired several new tattoos—including a "W.S.G." (an acronym for Westside Gang) tattoo on his chest—in keeping with his gang's tradition of commemorating gang-related accomplishments.


Ortiz testified in his own defense. He grew up in the Westside gang, having been a gang member since the age of 13. He dedicated his life to the gang and dropped out of school in the seventh grade. He began taking methamphetamine when he was 13 as well. He was arrested for various offenses starting at age 13, and at age 15 was convicted of attempted murder for stabbing a rival gang member.

Ortiz went to prison for nine years, and met Miguel on the prison yard when he was 18 or 19 years old. Miguel showed Ortiz how to live in prison. They were both from Escondido, and although from different gangs, that was not an issue in prison because they were all Southern Mexican Mafia gang members.

In prison, Ortiz and Miguel became close. Ortiz modeled one of his tattoos based on one Miguel had. Although Ortiz knew he did not have the money to pay for some drugs that he got from Miguel in prison in 2008, he took them promising to pay in the future, but failed to do so. Ortiz knew he was disrespecting Miguel and was buying time to try to figure out a way to pay him back when he was transferred to another prison facility. So the debt stayed with Ortiz.

Ortiz got out of prison in March 2014 and got a job at Walmart.

Ortiz did not see Miguel again from 2008 until the day of the shooting. Ortiz claimed that he knew Miguel was still mad at him for not paying for the drugs. Ortiz stated that when a debt to a gang member is not paid, there will always be violence. The person who is owed has to save face to keep the respect of others.

On July 30, 2014, Ortiz, Nieto, and Magadan went to the ATM machine near the grocery store. Magadan drove Ortiz's car. After Nieto got money from the ATM, the three men walked to a grocery store with Ortiz a little behind the other two men. They walked between two cars and as Ortiz was passing the back tire of an SUV, he heard someone say something to him in an aggressive manner. He could not remember the exact words. He looked over to see who it was, saw Miguel, and became very anxious. He and Miguel exchanged words, but he could not remember what the words were because his adrenaline was pumping. Ortiz said his sole focus was on Miguel because he "knew this was going to be the day that [he] was probably going to get that beating."

Miguel then tried to get out of the car, opening the door and swinging his leg out. Ortiz saw that he had a gun in his hand.5 Ortiz realized he was going to get shot, but could not run because he was stuck between cars. Ortiz was standing near the rear passenger door that Miguel tried to step out of when Ortiz fired at him and Miguel fell back into the car. The front passenger door then opened, and the person in that seat got completely out of the car. Ortiz fired at him as well, then ran. Ortiz did not see a weapon in the front passenger's hand, but he was already "in survival mode" and knew Miguel's friends would defend Miguel no matter what. Ortiz claimed that he never saw Smith or Grandys, and did not specifically shoot at Smith, although he knew other people were around or in the SUV.

Ortiz knew that Miguel, as a drug dealer, was always armed. Ortiz bought drugs from Miguel in prison and knew that Miguel was in prison for selling drugs. Ortiz believed gang members carry weapons whether in their own neighborhood or not.

Ortiz and the others had no plans to confront Eastside gang members or to shoot anyone. Westside's rivals are Diablos and Eastside, but Eastside is very small and not a real threat or worry to Westside.

Ortiz testified he was defending himself against Miguel and his brother Martin, who got out of the front passenger seat. Ortiz testified there were rules gang members had to follow, including no drive-by shootings, no violence toward children or older people, and no domestic violence. If a member breaks the rules, he would be in trouble with the gang and would not be safe from gang members in jail. If Ortiz and his fellow gang members had gone into the busy grocery store parking lot on July 30, 2014, to gangbang they would have jeopardized the entire Westside gang.

Ortiz noted there were cameras and lots of witnesses at the busy grocery store that increased the chances of getting caught. He stated that neither the meeting nor the shooting was planned. Ortiz never intended to kill anyone, but reacted and defended himself.6




Ortiz contends that the trial court violated his Sixth and Fourteenth Amendment rights to present a complete defense when it prohibited him from offering additional information regarding Miguel's threats against him because Ortiz owed Miguel money from a previous drug deal. We reject this contention.

A. Background

Ortiz testified in his defense. He stated that he received drugs from Miguel while they were both serving prison sentences, knowing that he did not have money to pay Miguel. After two weeks of failing to pay his debt, Ortiz feared he would "get beat up," but he was transferred to another prison before Miguel took any action. Ortiz admitted that since his prison transfer in 2008, he had not seen or heard from Miguel until they met in the grocery store parking lot, six years later, when Ortiz shot Miguel.

In addition, Ortiz testified that he knew Miguel was still mad at him at the time he saw Miguel in the grocery store parking lot. Nevertheless, he also stated that, after he was released from prison, Miguel "was not really in [his] head too much" and he "hadn't heard about him since prison." Ortiz admitted he purchased a gun because he "had a target on [his] back," "not only because of [Miguel]" but also because he was a gang member and "anything could happen." Ortiz explained that, in his experience as a gang member, there is going to be violence when someone does not pay his debt.

Ortiz admitted to shooting Miguel, Martin, and Smith, but claimed he did so in self-defense. To this end, he claimed that Miguel was holding a gun in his right hand while exiting the SUV. Moreover, Ortiz claimed that he "felt threatened at the moment [he saw] the gun" and was "[p]retty close to him."

However, the prosecutor objected to certain testimony offered by Ortiz to further explain why Ortiz was afraid of Miguel. For example, the following exchange occurred during trial:

"Q. So what happens when you don't pay a Mexican Mafia associate?
"A. Well, when you don't pay somebody money, they are going to be looking to get you, you know. They are going to be looking to get you, and I already know that [Miguel] was looking for me, you know. He already said he was looking for me, and—
"[Prosecutor]: That's going to call for hearsay.

"The Court: That is stricken.

"[Prosecutor]: Thank you.
"The Court: So the portion he already said, everything after that is stricken."
Thus, the court admitted most of Ortiz's testimony, but struck the end portion where Ortiz was saying that Miguel said he was looking for him.

A subsequent exchange also led to an objection, causing the court to strike a portion of the testimony:

"Q. So when you owe a debt, you know that what is likely coming to you is violence for not paying that debt?
"A. Yeah. I know that it is going to be some kind of confrontation, and it is going to be some form of aggression, some form of violence, is the only way it is going to work, because of the respect issue. Like the respect issue, he has to save face. He can't allow that. And I disrespected the man, you know, and it is what it is going to come down to is that. And I know that it is his life. It is his business. It is what he does. He sells drugs.
"[Prosecutor]: I'm going to object—
"The Court: I'm going to ask—
"[Prosecutor]: —and move to strike.
"The Court: On my own objection.
"[Ortiz's Attorney]: I think it goes—
"The Court: I understand what you are thinking. It is going to, but the portion, 'He has to save face,' everything after that will be stricken. [¶] So I will allow that first portion of the answer to remain and ask you to move on from this area."
Outside the presence of the jury, the attorneys and court addressed the issue of Ortiz trying to offer additional testimony regarding his state of mind. This discussion consisted of the following exchange:

"[Ortiz's Attorney]: Yes. Your Honor made several rulings that sort of prohibited me from going into what [Ortiz] knew at the time with regard to the threats Miguel had made. [¶] I'm not offering them for the truth of the matter, but I do think it is important what [Ortiz]'s mindset was at the time, and I think I should be allowed to explore that in depth. Not as to who told him what, but just he had heard certain things and how that impacted what happened that day.

"The Court: No. I understand your argument[, b]elieve me. [¶] And in my review of the record, why I love this device is, I think there is sufficient information to address for you that—your client's belief about what he thought about Miguel, and any more detail could only be interpreted for using as to the truth of the matter asserted, because in my review of what I allowed to remain on the record, there is plenty of information of your client's mindset, and that's why I ruled the way I did.
"[Ortiz's Attorney]: Just for the record, I feel like I should be able to explore more as to the extent of how—of all of the different occasions that he learned that [Miguel] was mad, that he was mad that [Ortiz] had disrespected him, and just to say he had heard it—that he had heard it doesn't go to the extent and the nature of the threats that [Ortiz] knew about, that were in his mind, that go to his state of mind at the time, that go directly to his claim of self-defense, because he knew that Miguel Fuentes was a person who carried weapons. He knew that Miguel Fuentes was a person who could become violent.
"The Court: And both of those are on the record, and I allowed them to stand. And any further exploration into the detail, you could only want to put before the jury to prejudice them as to the underlying facts, because those two statements that you have just made are contained on this record that I have allowed in, and in my review of what I said, that's why I said I have let you go that far and asked you to move on.
"[Ortiz's Attorney]: Okay.

"The Court: So you have made your record, and I am standing by my ruling. [¶] Anything from the People?

[Prosecutor]: A couple of observations. [¶] One is that Mr. Ortiz also testified that he hadn't heard Miguel's name since he left prison, which suggests to me he is just—any questions [Ortiz's attorney] asks him is just going to be a wholesale made-up. [¶] Point No. 1.
"The Court: I have already ruled. I don't want to revisit that.
"[Prosecutor]: That's fine.
"The Court: Okay. Were—I realize you have a desire to augment the record, but I'm not allowing any further explanation in that area.
"[Prosecutor]: Yeah. I was augmenting the record.
"The Court: Okay.
"[Prosecutor]: I will just simply add this observation.
"The Court: Okay.
"[Prosecutor]: And that is when you are asking somebody questions that call for hearsay, and it is obvious that the only purpose for asking them is to dirty up the victim for hearsay purposes, for the truth, and that's the only purpose that [Ortiz's attorney] is using it for, and she has got plenty of alleged ammunition already as to Mr. Ortiz's state of mind, there is no reason for the court to change its ruling.
"The Court: Well, I believe that is actually accurate. Why I reflected—the two statements in your last argument are actually reflected on the record that I have allowed in, and that's why I'm confident that I have allowed you to address that, but any further exploration is not appropriate for the jury to hear, because the only reason I can see would be to, quite frankly, dirty up the victim. [¶] I think I have already allowed a sufficient record of your client's state of mind, based on his understanding of the culture and the individual.
"[Ortiz's Attorney]: No one is trying to—the victim is another gang member.

"The Court: Right.

"[Ortiz's Attorney]: So, I mean, his character is at issue. His character is at issue. And I'm not trying to be sneaky or dirty him up. They are all gang members. All of them come with baggage. Mr. Ortiz comes with baggage. Martin comes with baggage. Miguel comes with baggage. His character is important in this case. It goes directly to a self-defense claim, which I have—I have not tried to hide where we are headed in this case; so I think it is relevant.
"The Court: Right. And I think when you review the record or any appellate court that does review the record, all of that information is already before them, including the argument you have made. So we need no further inquiry into this area."
The issue of the admission of evidence supporting Ortiz's claim of self-defense returned when the parties discussed jury instructions, specifically CALCRIM No. 505 (Justifiable Homicide: Self-Defense or Defense of Another). Initially, the court agreed to instruct the jury under CALCRIM No. 505, but there was disagreement whether the jury should be instructed as to any threats Miguel may have made against Ortiz, through Miguel himself or through a third party, that could have justified Ortiz acting in self-defense.

The prosecutor argued that Ortiz did not testify about being threatened by Miguel. In response, Ortiz's counsel pointed out that the court prohibited her from inquiring in the nature of the threats, but she believed Ortiz had testified he had discovered through others that Miguel had made threats against him. The court agreed with the prosecutor that Ortiz never articulated that Miguel ever specifically threatened him but, instead, because this was a gang case "with the gang culture" that has an "inherent[ly] confrontational aspect to it." As such, the court was inclined to give CALCRIM No. 505 "because of the nature of the gang assault or the gang confrontation" but not for any threats Ortiz might have heard. Ultimately, the court instructed the jury under CALCRIM No. 505.7

Despite the discussions regarding jury instructions and the apparent confusion regarding whether Ortiz testified about any threats, during her closing argument, Ortiz's attorney emphasized Ortiz's theory of self-defense. She focused the jury on the evidence that Miguel was a drug dealer who sold Ortiz drugs when they were in prison together. She reminded the jury that Ortiz could not pay Miguel for the drugs. Moreover, Ortiz's attorney stressed that Miguel was a Mexican Mafia associate, and Ortiz explained during trial that because he did not pay a debt to someone in the Mexican Mafia, he would be beaten or face "even more extreme violence." Ortiz's attorney reminded the jury that Ortiz testified "that he had heard from other people that Miguel was still mad about what had happened." Further, she highlighted that within the gang culture, Ortiz had completely disrespected Miguel, and when Ortiz saw Miguel on the night of the shooting, Ortiz "knew that was it."

B. Standard of Review and the Law

"Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute." (People v. Scheid (1997) 16 Cal.4th 1, 13, citing Evid. Code, §§ 350, 351; see Evid. Code, § 210.) Relevant evidence is evidence that "tend[s] in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)

However, relevant evidence may be excluded under Evidence Code section 352 if its probative value is "substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Harrison (2005) 35 Cal.4th 208, 229.)

It is well established the trial court has broad discretion in determining both the relevance of the objected-to evidence and in weighing its prejudicial effect against its probative value. (People v. Sanders (1995) 11 Cal.4th 475, 512; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 (Rodrigues).) As such, we will not reverse the trial court's ruling "except on a showing the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (Rodrigues, at p. 1124.)

As a threshold matter, we observe that Ortiz frames the issue presented as one implicating his federal constitutional rights. Alternatively stated, he claims the trial court's refusal to allow him to testify about what various third parties said about Miguel threatening him violated his right to present a complete defense under the Sixth and Fourteenth Amendments. However, " '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.' " (People v. Jones (1998) 17 Cal.4th 279, 305.) As such, in the instant matter, we first must determine whether the court abused its discretion in excluding the evidence under Evidence Code section 352.

C. Analysis

Ortiz claims the evidence regarding previous threats to his life were relevant to prove his theory of self-defense. To justify an act of self-defense, the defendant must have an actual and reasonable belief that bodily injury is about to be inflicted on him. (People v. Minifie (1996) 13 Cal.4th 1055, 1064 (Minifie); see People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) "The threat of bodily injury must be imminent [citation], and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.' " (Minifie, at pp. 1064-1065.) The test of reasonableness is objective; it is determined from the point of view of a reasonable person in the defendant's position. (Humphrey, at pp. 1082-1083.) Evidence that the victim had threatened the defendant is admissible to support a claim of self-defense. (Minifie, at p. 1065.) Further, evidence of past threats that were made not by the victim—but by members of a group who, in the defendant's mind, are reasonably associated with the victim—may also be admissible to support a defendant's claim of self-defense. (Id. at pp. 1060, 1065.) However, such third party threats do not, by themselves, establish self-defense; such threats must still be followed by some " ' "overt act" ' " that causes the defendant to fear imminent harm. (Id. at p. 1069.)

That prior third party threats may be relevant does not necessarily require that the evidence be admitted. (Minifie, supra, 13 Cal.4th at pp. 1069-1070.) The trial court must still balance the probative value of admission against the potential for undue prejudice or consumption of time. (Id. at p. 1070.) "[T]hird party threats inherently carry less weight than threats from the victim." (Ibid.) Thus, such evidence should be judged on a case-by-case basis, and the "more vague the threats, and the weaker the logical link between them and the defendant's actions, the more the court may be justified in excluding them." (Ibid.)

Here, Ortiz maintains the trial court erred by not allowing him to testify about threats "others had delivered to Ortiz from [Miguel]." To support a claim of erroneous exclusion of evidence, the substance, purpose, and relevance of the excluded evidence must be made known to the court by an offer of proof or other means. (Evid. Code, § 354; People v. Livaditis (1992) 2 Cal.4th 759, 778.) The offer of proof should be specific enough to show the relevance of the evidence, i.e., the offer "must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (People v. Schmies (1996) 44 Cal.App.4th 38, 53.)

In the instant matter, Ortiz's trial attorney did not make an offer of proof as to the substance of the excluded evidence. Although it is clear that Ortiz's counsel wanted to offer the evidence to show Ortiz's state of mind at the time he shot the victims and such evidence would be relevant, there is no offer of proof in the record showing what the evidence would actually be. We assume that Ortiz would testify about various third parties who told him that Miguel had made threats against him, but there is no indication in the record regarding the identity of these third parties, what they told Ortiz, and when they talked to Ortiz.

The failure to provide an offer of proof is amplified here because, on the record before us, it is very difficult to analyze whether the court abused its discretion in excluding the evidence under Evidence Code section 352 without knowing more about the proposed evidence. At trial, there was abundant evidence offered that Ortiz feared Miguel, specifically that Ortiz believed Miguel would hurt him if or when he saw him next. Ortiz testified that he got drugs from Miguel in prison, but could not pay him. Ortiz explained that by not paying for the drugs, he was disrespecting Miguel, and by showing such disrespect, he could expect to get "beat up" in prison. After he was transferred to another prison, Ortiz stated that other people in prison knew what was going on and implied that these people told him that Miguel remained mad at Ortiz. Indeed, Ortiz testified that he knew Miguel was still mad at him well after he transferred to a different prison. He stated that he understood, because Miguel was an associate with the Mexican Mafia, and that Miguel would be looking "to get" Ortiz for not paying his debt. In fact, part of his motivation for buying a gun once he left prison was his fear of Miguel. And Ortiz testified that Miguel was a drug dealer and that he knew Miguel carried a gun.

Despite Ortiz's detailed testimony explaining why he feared Miguel, he admitted that after he was released from prison, Miguel "was not really in my head too much." Moreover, he explicitly stated that he had not heard about Miguel since prison: "I hadn't heard about him since prison. I hadn't heard his name since prison." In fact, out of the presence of the jury, the prosecutor pointed out this testimony in arguing that any additional threats Ortiz would testify about would simply be "wholesale made-up." Ortiz's trial attorney did not address this argument or explain what the proposed evidence would provide other than to say it was relevant to Ortiz's state of mind. Thus, based on the evidence offered at trial, the arguments of trial counsel to the trial court, and the lack of any offer of proof to the contrary, it appears that the evidence Ortiz wanted to offer related to third parties who told Ortiz about threats Miguel made against him, but these threats were conveyed to Ortiz while he was still in prison.

Against this backdrop, we cannot say that the trial court abused its discretion in excluding Ortiz's testimony under Evidence Code section 352. The court explained its reasoning, noting that there was evidence in the record explaining Ortiz's state of mind, namely he knew that Miguel was a person who carried guns and who could become violent. In addition, the trial court stated that it was concerned that additional testimony about third parties conveying threats from Miguel to Ortiz "could only be interpreted [by the jury as being admitted] . . . as to the truth of the matter asserted . . . ." The trial court also expressed its concern that "any further exploration is not appropriate for the jury to hear, because the only reason I can see would be to, quite frankly, dirty up the victim."

On appeal, Ortiz claims the trial court's reasoning is muddled and confused, pointing us to the trial court's comments at the time of discussion of proposed jury instructions. We agree with Ortiz that the trial court's comments regarding the evidence admitted and the need for CALCRIM No. 505 are confusing and do not accurately reflect the evidence admitted or the court's ruling on the evidence at the time of trial. Nevertheless, the trial court's misunderstanding during the discussion of the proposed jury instructions does not give us pause as to its proper use of discretion to exclude the evidence. Although we find the trial court's comments about the state of the evidence when the attorneys were discussing CALCRIM No. 505 somewhat unfortunate, ultimately, they do not lead us to conclude "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (Rodrigues, supra, 8 Cal.4th at p. 1124.) Accordingly, we determine there are no grounds on which to reverse the judgment below.


The judgment is affirmed.


BENKE, Acting P. J.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 To avoid confusion, we use the first names to identify the specific Fuentes brother.

3 The prosecution offered testimony from a gang expert. As there is no challenge to the gang allegations in this case, we eschew a detailed discussion of the expert's testimony. However, we observe that the expert explained that "hitting up" someone is asking that person where he is from to determine if he is from a rival gang. If the person responding to that question is from a rival gang, violence usually follows. In a hypothetical mirroring of the facts of the instant matter, the gang expert opined that the shootings were in furtherance of the Westside gang and to promote that gang.

4 Miguel was carrying a hypodermic needle and three cell phones in his pants pockets. A white powdery substance, which was never tested to determine what it was, also was found. A subsequent search of the SUV revealed a tire jack handle, a breaker bar, a wrench, a long socket wrench, two folding pocket knives, and a black tire iron, but no guns.

5 Other than Ortiz's testimony, there is no evidence in the record that Miguel had a gun at the time Ortiz shot him.

6 In a recorded jailhouse conversation between Ortiz and his wife, Ortiz said that he was "not guilty of first degree murder" because he did not plan the attack, but also that he was "not saying [he was] innocent."

7 Ortiz does not claim any error attributable to the jury instructions. Therefore, we do not include the text of CALCRIM No. 505 as it has no bearing on the issues before us.

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