(Super. Ct. No. 09F05226)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After hearing his brother had been "jumped," defendant, a Sureno gang member, joined his two older brothers and friends in a fight against three men wearing red. One was victim Samuel Sanchez. As the fight ended, Sanchez was mercilessly hit, kicked, stomped, and finally stabbed to death, while huddled on the ground in the fetal position.
Defendant was arrested two months later, after a traffic stop where a gun was found in the car. He was subsequently charged with Sanchez's murder, as well as enhancements for gang benefit and personal use of a knife.
The jury convicted defendant of first degree murder, but deadlocked on the enhancements. The same jury also convicted defendant of carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)) based on the traffic stop two months after the murder.
Sentenced to 25 years to life in prison, defendant appeals. He contends the trial court erred in failing to instruct sua sponte on defense of another as an affirmative defense to assault or battery. He further contends the trial court erred in admitting evidence of his arrest for possession of a loaded gun after he agreed to plead guilty to the charge. He asserts the evidence was unduly prejudicial.
As we will explain, we find no error and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brian Logan, with his friends Nathaniel Renteria and victim Sanchez, went to a liquor store to rent a U-Haul truck. Logan was wearing a red and black shirt and red and black shoes. Sanchez wore a red jersey. While they were in the store, defendant's brother Leonardo Chavez drove up with his girlfriend, Shanti Maharajh. Chavez went inside the store and exchanged words with Renteria.*fn1 They all went outside and began fighting. Outnumbered three to one, Chavez told Maharajh to call his "homies."
Maharajh was moving that day; her house was very near to the liquor store. Chavez, his brothers Francisco Dominguez and defendant, and various other family and friends were helping. When Maharajh called the house for help, almost everyone immediately got in a Suburban and left to drive the very short distance to the store. Defendant was in the bathroom and did not go with them. The Suburban pulled up to the fight and several people got out and joined the fight. Defendant followed on foot.
A group of young men were at the nearby Superb Burger and saw the fight from across the street. According to one of the group, it looked like a gang fight between men wearing blue and three men wearing red. As the fight continued, Sanchez was singled out by the larger group in blue. By then, he was on the ground in the fetal position, where he was kicked, punched, and stomped. Then everyone backed away from Sanchez and someone approached and inflicted the last wounds, stabbing Sanchez in the back of his head, neck, and shoulders.
Sanchez was bloody. Logan and Renteria took him to the UC Davis Medical Center, where he died. The cause of death was a total of 11 stab wounds to his neck and torso. Some of the wounds were three-inches deep.
The main issue at trial was the identity of the stabber. One of the men at Superb Burger, Michael Purcell, saw someone walk up and join the fight. That person had yelled at Purcell, who walked away.*fn2 Purcell later saw that same person stab Sanchez. He identified defendant as that person from a photographic lineup.*fn3 A fireman at a nearby station identified defendant as someone he had seen running away after the fight. The description other witnesses gave of the stabber did not match defendant. The stabber was variously described as a "big dude" and a guy with long hair. Defendant was approximately 5'6" with a shaved head.
In his interview with the police, defendant at first denied participating in the fight. Eventually, he admitted he went to the fight. He claimed he saw someone hitting his brother Leo, so he ran over and "socked the fool a couple of times." Defendant added he was scared off by a man with a machete.*fn4
A gang detective testified as an expert that defendant, as well as his two brothers, had been validated as Sureno gang members. Surenos associate with the color blue and are enemies of Nortenos, who associate with the color red. It was the ...