P. v. Zapata CA2/6

Filed 4/29/13 P. v. Zapata CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B238306 (Super. Ct. No. BA373635) Plaintiff and Respondent, (Los Angeles County)

v.

RUBEN ZAPATA et al.,

Defendants and Appellants.

Ruben Zapata and Miguel Vivas appeal a judgment after conviction by jury of one count each of assault with a semiautomatic weapon. (Pen. Code, § 245, subd. (b).)1 The jury found true allegations that Zapata and Vivas committed the assault on behalf of a criminal street gang. (§ 186.22, subd. (b)(1)(B).) It also found true allegations that Zapata (the principal) was armed with, and personally used, a firearm. (§§ 12022, subd. (a)(1), 12022.5, subds. (a) & (d).) Zapata and Vivas contend the trial court abused its discretion when it allowed evidence that, three months after the assault, Zapata and Vivas committed a robbery with a gang member. They also contend that there was insufficient evidence to support the jury's finding on the gang allegation. Vivas requests review of any file produced in the trial court pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d. 531.

1 All statutory references are to the Penal Code.

We review the sealed transcript of the Pitchess hearing and determine no information was improperly withheld. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Dogtown is a criminal street gang. Its territory includes the Willliam Mead Housing Development in Los Angeles (the housing project). Vivas lived in the housing project; Zapata grew up there. One evening in July 2010, Los Angeles Deputy Sheriff Adrian Rendon drove an unmarked car near the housing project, along the boundary of Dogtown territory. He made eye contact with the driver of an oncoming car, Vivas. Vivas made a U-turn and pulled along aside Rendon so that his passenger, Zapata, was within two feet of Rendon. Zapata pointed a handgun at Rendon, and then said, "Oh fuck. He's a cop." Vivas drove away. Deputy Rendon is Hispanic. His hair was cut very short. He was wearing a uniform. Rendon followed the car. It turned into the housing projects and Rendon called for assistance. Deputies found the parked car in the project, still warm to the touch. It belonged to Zapata. A helicopter search light illuminated Zapata and Vivas who were standing by an abandoned sofa in the project. Zapata put something under the sofa before they ran. They were caught. Each denied involvement in the assault. A deputy found a small loaded handgun beneath the sofa. In a recorded telephone call from jail, Vivas told his sister to retrieve guns from his room and to give them to "Reaper or somebody." Zapata's brother is a Dogtown member whose moniker is "Reaper." Over defense objection, the trial court admitted evidence that Zapata and Vivas were involved in a robbery after the assault. The trial court conducted a section 352 hearing before admitting the evidence. It found the subsequent robbery to be highly relevant to the "association" element of the gang allegation. A Los Angeles police officer testified that, about three months after the charged assault, Zapata and Vivas "robbed" a case of beer from a liquor store with Reaper. The court instructed the jury to consider the