People v. Saldana CA5

Filed 12/7/20 P. v. Saldana CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079712 Plaintiff and Respondent, (Super. Ct. No. 1246306) v.

ALVARO LEAL SALDANA, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.

FACTS AND PROCEDURAL HISTORY1 On March 22, 2008, Alvaro Leal Saldana, Jr. (defendant), and his brother and original codefendant, Ray Gutierrez, Jr., attended a wedding reception in Hilmar.2 There, Gutierrez got into a fight with Miguel Perez, an inactive Norteño gang member with whom he also had personal issues dating back a number of years. Roger Villanueva, a friend of Perez who did not get along with the brothers, and others joined in. Someone — possibly Villanueva — knocked defendant out. (People v. Gutierrez, supra, F062970.) A few days later, defendant happened to encounter Villanueva. Defendant pointed at him and made a gun gesture with his hands. (Ibid.) About a week before May 25, 2008, Gutierrez gave his cousin an item wrapped in cloth and asked him to hold it for him. The cousin subsequently told police it was a gun. (People v. Gutierrez, supra, F062970.) On May 25, 2008, Gutierrez asked for it back. He, defendant, and the cousin then drove to a barbecue in Turlock. Although neither Villanueva’s name nor the wedding reception was mentioned during the drive, defendant said maybe somebody would get in a fight. (Ibid.) Defendant and Gutierrez were already at the location of the barbecue when Villanueva arrived. Villanueva told defendant he wanted to “squash it” (let it go) and did not want any problems. He extended his hand, but defendant refused to shake it. Defendant looked angry. Villanueva followed him to the backyard of an abandoned house next door, removing his hat, jacket, and gold chain as he went. (People v. Gutierrez, supra, F062970.) Although neither Gutierrez nor anyone else followed defendant and Villanueva, Gutierrez was pacing quickly back and forth by the fence of the abandoned house. He suddenly ran to the back, and, within seconds, witnesses heard