People v. Salgado CA1/4

Filed 7/1/16 P. v. Salgado CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A141831 v. MARVIN M. SALGADO, (S.F. City & County Super. Ct. No. 221361-01) Defendant and Appellant.

Marvin M. Salgado appeals from a judgment upon a jury verdict finding him guilty of assault with a deadly weapon, a bat, with the allegation that defendant personally inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a)) and felony battery with a serious injury with the allegation that defendant personally used a deadly weapon (Pen. Code, §§ 243, subd. (d); 12022, subd. (b)(1)). The jury acquitted defendant of an attempted murder charge. Defendant contends that the trial court abused its discretion in excluding evidence that his former co-defendant pleaded guilty to assaulting the victim and that he admitted he “hit a black guy last night” in a jailhouse phone call. We affirm. I. FACTS At about 4:15 a.m. on October 6, 2013, Troy Perkins had a dispute with Darlin Uvence-Cruz (Cruz), whom Perkins knew as “Larry.” Perkins testified that Cruz was drunk and attempting to cheat him in a deal on his recyclables, so he hit Cruz in the jaw. After that incident, Perkins walked on Folsom Street, toward 14th Street and the Foods Co. store, and saw Cruz and defendant. Cruz and defendant had “shiny” baseball bats

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and proceeded to hit Perkins in the head. He fell to the ground. Perkins was in a coma for four days and spent twelve days in the hospital. On November 7, 2013, he identified defendant and Cruz in two separate photograph lineups. He said that he often saw them together. Mohamed Bagadi witnessed the incident. He was on a break from his job at U.C.S.F. Medical Center and was smoking a cigarette on Folsom Street. His co-worker, Sunny Bang, was with him. He saw two men and a woman walking on Folsom Street with shopping carts going toward the Foods Co. He then saw two men, one of whom he identified as defendant,1 walk toward the three people. Defendant and the other man were each holding an object. One man was holding an aluminum bat; the other man held an object, but Bagadi could not identify it from his vantage point. Bagadi saw defendant and the other man chase after one of the men from the threesome he saw walking on Folsom Street. Defendant and the other man hit the man from the threesome with the baseball bat and the other object. Bagadi screamed at them to stop. A U.C.S.F. police officer responded to the scene and asked defendant to drop the bat. Defendant was arrested. Bang also worked at U.C.S.F. Medical Center and took a break with Bagadi shortly after 4:00 a.m. on October 6, 2013. He saw three people, who appeared to be homeless, pushing shopping carts down Folsom Street toward 14th Street. A few minutes later, he saw two men, each carrying a long object in their hand, walking quickly as if trying to catch up to someone. The two men pursued one of the three homeless people and struck him in the head with bats. One of the men had an aluminum bat while the other had a wooden bat or a piece of wood about the size of a bat. Bang called 911 while Bagadi yelled at the men to stop. An officer from a nearby building responded to the commotion. One of the men fled. The other one approached the officer; he had a metal bat. He complied with the officer’s demand to put the bat down. Bang was unable to identify defendant or the other perpetrator in a photographic lineup or at trial. He