P. v. Partida 7/30/04 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B161356A

Case Date: 07/30/2004

Preview:Filed 7/30/04 (Opn. on Rehearing)

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. JOSE PARTIDA, Defendant and Appellant. B161356 (Los Angeles County Super. Ct. No. TA061403)

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur M. Lew, Judge. Affirmed. Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.

STATEMENT OF THE CASE An information filed in the Los Angeles County Superior Court charged appellant with one count of murder in violation of Penal Code section 187, subdivision (a). The following enhancements were also alleged: (1) appellant personally and intentionally discharging a firearm which proximately caused great bodily injury and death within the meaning of section 12022.53, subdivision (d); (2) appellant personally and intentionally discharging a firearm within the meaning of section 12022.53, subdivision (c); and (3) appellant personally using a firearm within the meaning of section 12022.5, subdivision (a)(1) and 12022.5, subdivision (b). Appellant pled not guilty and denied the special allegations. A jury found appellant guilty of first-degree murder and also found the allegation that appellant personally and intentionally discharged a firearm causing great bodily injury and death to be true. Appellant was sentenced to 25 years to life for the murder and a consecutive 25 years to life for the enhancement, for a total of 50 years to life in prison. Appellant was ordered to pay a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b). A parole revocation fine of $10,000 was stayed pending successful completion of parole pursuant to section 1202.45. Appellant received 381 days of custody credit. Appellant filed a timely appeal from the judgment. STATEMENT OF FACTS On August 11, 2001, Jesse Moreno was killed as he, Dominic Barboa, Evette Mendoza and Eric Mendoza ordered food at the Tacos El Unico taco stand. While at the stand, located at the corner of Glencoe Street and Long Beach Boulevard, the group noticed a green van exit the parking lot onto Long Beach Boulevard. Appellant, the passenger in the van, tried to get Moreno's attention. Appellant then spoke to the driver of the van, and then asked Moreno, "Where are you from?" Moreno and Barboa turned around and told appellant, "We don't bang." Appellant responded, "I'm from USV,

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Unos Sin Verguenza." The van then left and did a U-turn on Glencoe. After Barboa went to get his food, he sat facing Long Beach Boulevard, while Moreno sat on the guardrail with his back toward Long Beach Boulevard. While Barboa and Moreno began to eat, Evette remained standing, afraid and wanting to leave. Evette saw appellant approaching on foot down Long Beach Boulevard toward Moreno with a gun in his hand. When appellant pointed the gun at Moreno, Moreno attempted to jump the guardrail, but was blocked because Barboa was in the way. Instead, Moreno ran in the other direction toward the parking lot. After falling between two tables, Barboa got up and began to run, along with Evette and Eric. As appellant pointed the gun at Moreno and shot, he said, "Fuck you. I'm from USV, Unos Sin Verguenza." After Moreno fell to the ground, both Barboa and Evette ran back towards him. Moreno died from two gunshot wounds to his back. Los Angeles County Sheriff deputies, including Richard Tomlin, arrived at the scene, and found shell casings in the area. After Detective Tomlin inquired at the Sheriff's station about USV, he went to the area of Bennett Street and Long Beach Boulevard where he observed tagging on several apartment buildings. USV was written on one wall with an arrow pointing down along with several monikers, including the name "El Stalker." Detective Tomlin later found information documenting appellant as "El Stalker," and included his photograph along with five other similar looking individuals. From this six-pack of photographs, Barboa reluctantly identified appellant as the shooter. Barboa circled appellant's picture and wrote "His The Shooter" and signed his name. At trial, after admitting that he did not want to be a snitch, Barboa testified that he randomly circled the photograph and was told what to write next to the picture. When Evette Mendoza was shown the photographs, she also circled appellant's picture and signed her name and wrote, "I know it's him. I remember his face." On August 21, 2001, appellant and a female juvenile were arrested in appellant's mother's van. A handgun was recovered from the female juvenile, which was later determined to be the gun that fired the shell casings found at the crime scene. 3

One of the prosecution witnesses was Detective Richard Valdemar, a 31-year member of the Los Angeles Sheriff's Department. Defense counsel objected to his testimony on the grounds that it was more prejudicial than probative and that the testimony was cumulative. The objection was overruled and significant testimony regarding gangs was admitted. At first, Detective Valdemar testified as to his experience and qualifications as a gang witness. He detailed various work assignments over a 16year period that brought him into contact with major crimes and with gangs, including prison gangs, the Mexican Mafia and the Brown Beret Organization. Regarding graffiti, Valdemar testified, "I call it the newspaper of the street. By reading graffiti gang members are able to tell who is prominent in that community and by carefully reading it and seeing whose marking the graffiti out you can tell who's in conflict with them and who are their allies and what the current squabbles may be. [

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