The People v. Compian CA2/6

Filed 9/18/13 P. v. Compian CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B242940 (Super. Ct. No. 2009046937) Plaintiff and Respondent, (Ventura County)

v.

ALEX COMPIAN,

Defendant and Appellant.

Alex Compian appeals a judgment following his conviction of first degree murder (Pen. Code, § 187, subd. (a), 189), with jury findings that he "personally and intentionally discharged a firearm, which proximately" caused the death of Mario Cisneros. We conclude, among other things, that: 1) the trial court did not err by denying a motion to exclude a witness's pretrial photographic identification and in-court identification of Compian, and 2) substantial evidence supports the finding the murder was deliberate and premeditated. We affirm. FACTS Gustavo Nevarez knew Compian since Compian was 13 years old. Nevarez's brother and Compian had lived at the same address. Over the years Nevarez had seen Compian hundreds of times. On the evening of December 24, 2009, Nevarez celebrated Christmas with family members. Later that evening he went to Mario Cisneros's house at 220 Alpine

Street. He knocked on the door. Cisneros did not answer. Nevarez saw Cisneros walking on the sidewalk near a neighbor's driveway. He called out to Cisneros, but Cisneros did not hear him because he was talking to somebody. Nevarez heard Cisneros say "Fuckin' rat. Damn rat. . . . . A rat, you are a rat." Compian was "following" Cisneros. He "cut across" a "neighboring yard" while pursing Cisneros. As Cisneros walked toward his residence, Compian was "walking behind him." Nevarez decided to walk to an area to wait for Cisneros. While walking, Nevarez heard gunshots. He saw Compian running away towards a car. Nevarez went to a relative's house nearby and told them to call an ambulance. He told his relatives that Compian had shot Cisneros. Nevarez went back to Cisneros and told him, "Hold on, hang in there, we're going to go get help," but Cisneros died from his wounds. Nevarez noticed that the car Compian ran to was no longer there. Police Officer Sonia Sanchez arrived at the scene and drove Nevarez to the Oxnard police station. Nevarez told Sanchez that Compian was "the shooter." She showed him a photograph of Compian. Nevarez identified him as the shooter and said he had known Compian for five years. Joanna Hernandez was the mother of Compian's child. During a phone call after the shooting, Compian told her that he had "smoked a homie" on Alpine Street and the victim had called him a rat. In a pretrial motion, Compian's counsel moved to exclude the evidence of Nevarez's photo identification of Compian at the police station. He argued that the procedure was "unduly suggestive." He requested that no "eyewitness identification in court" be introduced. The trial court denied the motion. At trial, Nevarez identified Compian as the person he saw running from the scene of the shooting. Gabriel Anthony Cisneros (Gabriel), the victim's son, testified that before the shooting he heard a man yell, "What's up, homie?" It was not his father's voice.