P. v. Dewey CA2/6

Filed 7/23/13 P. v. Dewey CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B240744 (Super. Ct. No. BA343051) Plaintiff and Respondent, (Los Angeles County)

v.

EDWARD J. DEWEY,

Defendant and Appellant.

Edward J. Dewey appeals a judgment following his conviction for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))1 (count 3). Dewey was also charged with murder (§ 187, subd. (a), 189) (count 1) and attempted murder (§§ 664, 187, subd. (a)) (count 2). The information alleged he committed those two offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The jury deadlocked on counts 1 and 2, and the trial court declared a mistrial as to those counts. The court denied Dewey's requests to exclude photographs taken from his cell phone that showed, among other things, Dewey posing with a handgun a few days prior to the date of the charged offenses. We conclude, among other things, that those photographs were properly admitted 1) as proof of the charged offenses, 2) to impeach defense witnesses, and 3) as gang evidence. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated. References to section 12021 are to the version in effect prior to January 1, 2012.

FACTS Dewey was a member of the Southside Montebello gang. Jose Luis Casillas was formerly an active member of the Eastside Paramount gang. On July 4, 2008, Santos Ramirez and Casillas went to a park to "view some fireworks." When they arrived, a man began staring at Ramirez. He appeared to be aggressive. Ramirez responded by stating, "What's up?" A second man approached. He "[g]ot in [Ramirez's] face" and said, "Don't be disrespecting my homie. This is my fucking vario." Ramirez replied, "I ain't from around here. I kick it on the east side." Someone hit Ramirez in the face. He fell to the ground and people began to kick him. Ramirez saw a handgun pointing at his head. It was not a revolver. He "took off running." Shots rang out. Casillas was shot in the head and he died. The man holding the gun was bald-headed and was wearing a white shirt. Four days later the police arrested Dewey. Dewey was charged with the murder of Casillas and the attempted murder of Ramirez by firing a "handgun." He was also charged with possession of a handgun by a felon on July 4th. He stipulated that he had a 2005 prior felony conviction. At trial, Carlos Vargas testified that on July 4, 2008, he saw several individuals fighting. Vargas knew Dewey. He saw Dewey pull out a silver and black handgun "from his waist." Vargas heard three gunshots. The prosecutor showed Vargas a photograph of a handgun that was found on Dewey's cell phone (People's exhibit 22). That photograph was taken on June 30, 2008. Vargas said the gun shown in exhibit 22 was "similar to the handgun" he saw Dewey holding on July 4th. He said Dewey was wearing a white shirt. Edward Garcia testified that on July 4, 2008, he and his friends were watching fireworks when "[he] heard someone say 'gun.'" He saw a man wearing a white shirt holding a gun. At the crime scene, police found nine-millimeter shell casings. They did not find the weapon.