Full Opinion

Filed 11/13/26 P. v. Vasquez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, B339982 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA128127) v. GUS ROBERT VASQUEZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Rogelio Delgado, Judge. Affirmed as modified. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ A jury convicted Gus Robert Vasquez of premeditated murder. At trial, Vasquez introduced evidence that a third party was the murderer. The trial court excluded other evidence that Vasquez claimed would buttress his third party culpability claim. On appeal, Vasquez contends the trial court abused its discretion by excluding the evidence. We reject that contention. We modify the judgment to correct the award of actual custody credits and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND Vasquez was jointly tried with Amaree Thompson for the murder of Naim Jabar. The prosecution theory was that Vasquez and Thompson killed Jabar in retaliation for the prior murder of Vasquez’s brother and Thompson’s friend, Angel Vasquez. Vasquez contended that a man named “Jason” killed Jabar.1 The Evidence at Trial A. The July 16, 2021 Murder of Angel Vasquez On July 16, 2021, Angel Vasquez was shot and killed while driving his car in Pomona. He was friends with Thompson, who was at the scene after the shooting, visibly upset. B. The July 18, 2021 Murder of Jabar Two days after Angel Vasquez was killed, Jabar was killed while on a video call with his friend Dwayne Snell. Snell testified that Jabar called him at about 4:40 p.m. while Jabar was walking 1 “Jason” was identified as Jason Nunez. Because Fernando Baeza identified the shooter as “Jason,” and the parties used only his first name at trial, we also refer to him as “Jason.” 2 in a residential neighborhood. An agitated Jabar told Snell that two guys in a car asked where Jabar was from. Jabar told Snell that he (Jabar) should never have posted a video about his friend.2 Jabar said the car had approached him again, someone in it asked for his name, and he lied, saying his name was Dray, which was Jabar’s brother’s name. Jabar said, “ ‘They’re coming again,’ ” and Snell then heard multiple gunshots. Jabar died at the scene from multiple gunshot wounds, including shots to the head. C. The Investigation Law enforcement recovered video surveillance from the crime scene area. The surveillance video showed the shooter got out of the passenger’s side of a white four door sedan and shot Jabar. The shooter touched the hood of a car parked in front of the house where Jabar died. Law enforcement swabbed the hood for DNA analysis. The shooter also appeared to have a bald spot on the front part of his hairline. The prosecution introduced two photographs of Vasquez in which he appeared to have a similar bald spot. DNA obtained from the hood of the car the shooter touched contained a mixture of possibly three DNA profiles, including major and minor (meaning less DNA in the swab sample) male contributors. Vasquez was a possible minor contributor. The probability that an unrelated individual at random could be a possible minor contributor to the DNA mixture was approximately one in 130 trillion, which exceeds the Earth’s population. When Thompson was arrested, he was driving a car matching the one the shooter exited and reentered. 2 It is unclear what the video was about. 3 At 4:40 p.m., Thompson’s cellphone was within half a mile of where Jabar was shot. D. Gang Evidence Officer John Gribben testified that the Ghost Town Crips is a Pomona-based gang. The 456 Island Bloods gang is an enemy. Officer Gribben had numerous contacts with Vasquez and had arrested him for illegally possessing firearms. In the officer’s opinion, Vasquez and his brother Angel Vasquez were Ghost Town Crips gang members. Thompson was a member of another Pomona gang that got along with Ghost Town Crips. According to the officer, gangs are expected to retaliate if a rival gang kills one of its members. Angel Vasquez and Jabar were killed in 456 Island Bloods territory. E. Defense Evidence Jabar died in front of 16-year-old Baeza’s house. Baeza testified at trial that, on hearing gunshots, he looked out the window and saw the shooter’s back but not his face. He denied identifying the shooter to the police. Baeza then agreed he gave a statement to the police the same day as the shooting and identified “Jason” as the shooter. He thought Jason was the shooter because Jason and Jabar had “ultra beef between each other.” Baeza also told a defense investigator that Jason was the shooter. After the shooting, Baeza and his mother went to the police station. In a recorded statement, Baeza told police he saw the “dude that shot” Jabar. He said the shooter had “I think Mexican brown skin,” was heavyset, and had a tattoo on his left arm. When Baeza said he had never seen the shooter before, this exchange involving Baeza’s mother occurred: 4 “[Detective]: Did you recognize the guy that shot? “[Baeza]: Mmm, No. “[Detective]: Never [seen] him before? “[Baeza]: Never seen him. “[Detective]: Do you know? “[Mrs. Baeza]: Thought you said it was Jason? “[Baeza]: It was Jason, but skin tone, Jason’s White. This guy was Mexican. “[Mrs. Baeza]: Jason’s Mexican. “[Baeza]: Oh. So yeah. Jason did it.” Baeza did not identify anyone from a photographic six-pack lineup that included Vasquez. A gang expert also testified for the defense that, in his opinion, Vasquez was not a gang member because he denied being one and did not have tattoos. The expert also testified that “love triangles” are a common reason for violence between gangs. Verdict and Sentence A jury convicted Vasquez of willful, deliberate, and premeditated first degree murder (Pen. Code, § 187, subd. (a)) and found true a personal gun use allegation (id., § 12022.5, subd. (a)). The jury acquitted Thompson. On August 1, 2024, the trial court sentenced Vasquez to 25 years to life plus the midterm of four years for the gun enhancement. DISCUSSION I. Third Party Culpability Evidence Vasquez introduced evidence that a third party—Jason— was the killer. The trial court, however, excluded the testimony of Yvonne Jimenez, who could provide a possible motive for Jason 5 to kill Jabar. Vasquez contends the trial court abused its discretion by excluding Jimenez’s testimony. A. Additional background At the outset of the defense case, the prosecutor objected to Jimenez’s testimony. The prosecutor represented that Jimenez had given a statement to the defense that she was Jason’s ex- girlfriend, Jabar and Jason were associated with her in some way, the two men were enemies, and they had a dispute over a dog. The prosecutor expressed doubt that Baeza’s testimony would raise “enough direct or circumstantial evidence linking this unknown Jason as the possible shooter and murderer, and, therefore, making Yvonne Jimenez[’s] testimony” irrelevant and inadmissible. The trial court decided to hear Baeza’s testimony before ruling on the admissibility of Jimenez’s testimony. Baeza testified as summarized above, including that he did not see the shooter’s face but he identified Jason as the shooter to the police. The parties and trial court then returned to Jimenez’s proposed testimony. Defense counsel proffered that Jimenez had dated both Jabar and Jason. In 2020, Jimenez saw Jason threaten Jabar with a “Glock imitation” gun, and Jason was arrested later that day for possessing an air soft gun based on an anonymous tip. After Jimenez heard that Jabar had been shot, she called Jason, who indicated “he took care of it,” referencing Jabar.3 The prosecutor responded by describing Baeza’s testimony as a “disaster,” asserting that Baeza was unsure Jason was the 3 Defense counsel said she would not ask Jimenez about Jason’s out-of-court statement. 6 shooter and he had only given Jason’s name because Jason and Jabar “had beef.” The prosecutor also said Baeza’s mother suggested Jason was the shooter, so “I just think there is not enough evidence circumstantially or directly that Jason Nunez had any connection to this murder.” The prosecutor objected that Jimenez’s testimony would be a “red herring,” confuse the issues, and its prejudice outweighed its probative value. The trial court noted it had discretion whether to admit the evidence, and evidence that a third person had the motive or opportunity to commit the crime was insufficient to raise a reasonable doubt. The court further explained: “I just heard motive, and it’s not even from him, it’s from his mom who is prompting him. His I.D. is totally different. He is describing a white person, right, and the mom says, no, he’s Mexican. Everything is off. [¶] … [B]ased on that, it would be speculative and time consuming and I don’t know what that other witness would come in talking about, this guy pointed an airgun at [Jabar] and over a dog, with any wavering of reasonable doubt in this case based on the evidence that the People presented, specifically, the DNA.” The trial court added, “There is no connection. I feel that would be just speculative. Mere motive is not – without anything else connecting him to this murder based on the evidence that the People presented with the DNA 1 in 30 trillion that your defendant put his hand or touched that vehicle.” B. The trial court did not abuse its discretion Third party culpability evidence is admissible if it is capable of raising a reasonable doubt of the defendant’s guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) Evidence that another person has motive or opportunity to commit the crime, without more, is insufficient to raise a reasonable doubt about a 7 defendant’s guilt. Instead, “there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.; accord, People v. Turner (2020) 10 Cal.5th 786, 816–817.) “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).” (People v. Hall, supra, 41 Cal.3d at p. 834.) The test of relevance is whether the evidence logically, naturally, and by reasonable inference tends to establish material facts such as identity, intent or motive. (People v. Ghobrial (2018) 5 Cal.5th 250, 282.) We review the exclusion of third party culpability evidence for abuse of discretion. (People v. Turner, supra, 10 Cal.5th at p. 817.) The trial court here did not abuse its discretion by excluding Jimenez’s testimony. Jimenez’s testimony merely offered additional third party culpability evidence that did not directly or circumstantially implicate Jason in the murder. At most, Jimenez’s testimony suggested a motive for Jason to dislike Jabar, either they had both dated Jimenez or they had a disagreement about a dog. Similarly, that Jason pointed a fake gun at Jabar in 2020, at least six months before he was murdered, showed that Jason disliked Jabar. But this evidence did not directly or circumstantially link Jason to Jabar’s murder, unlike Baeza’s testimony. (See, e.g., People v. Kaurish (1990) 52 Cal.3d 648, 684–686 [mere evidence third party was mad at victim was insufficient to admit evidence linking him to crime]; People v. Edelbacher (1989) 47 Cal.3d 983, 1017–1018 [third 8 party’s possible or potential motive alone insufficient to raise reasonable doubt of defendant’s guilt], disapproved on another ground by People v. Lloyd (2002) 27 Cal.4th 997, 1007, fn. 12.) We therefore cannot conclude that the trial court abused its discretion by excluding Jimenez’s testimony. Nor do we agree with Vasquez that the trial court excluded Jimenez’s testimony based on an improper determination that Baeza’s testimony was insufficient to establish third party culpability. When evaluating third party culpability evidence for admissibility, a trial court may not assess a witness’s credibility. (People v. Cudjo (1993) 6 Cal.4th 585, 610.) In Cudjo, the defendant was on trial for murder. The defendant’s brother told a cellmate that he was the murderer, not the defendant. The trial court excluded the cellmate’s testimony at the defendant’s trial, finding the testimony not credible and, as such, more prejudicial than probative. The appellate court found the trial court abused its discretion by excluding the evidence because the cellmate’s credibility was a question for the jury. (Ibid.) Vasquez, relying on Cudjo and citing the trial court’s comments, argues that the trial court excluded Jimenez’s testimony because it discredited Baeza’s testimony. Stated otherwise, the trial court found that Baeza’s testimony did not credibly support third party culpability, so it excluded Jimenez’s testimony essentially as irrelevant. We do not agree that the trial court based its ruling about Jimenez’s testimony on an improper finding that Baeza was not credible. In context, the trial court’s comments reflect an observation that Baeza’s testimony was ambiguous. Baeza had, for example, said the shooter was Mexican, but Jason was White. Baeza then seemed to agree Jason was the shooter when Baeza’s mother confirmed 9 that Jason was Mexican. Jimenez’s testimony did not fill in any evidentiary gap by identifying, directly or circumstantially, Jason as the shooter. The trial court thus exercised its discretion to exclude Jimenez’s testimony because it did not identify Jason as the shooter and instead went merely to motive. In any event, any error in excluding Jimenez’s testimony was not prejudicial. We evaluate error in excluding third party culpability evidence for prejudice under the standard in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cudjo, supra, 6 Cal.4th at pp. 611–612; People v. Hall, supra, 41 Cal.3d at p. 836.) That standard requires the appellant to show it is reasonably probable the appellant would have received a more favorable verdict had the erroneously excluded evidence been admitted at trial. (Cudjo, at pp. 611–612; Watson, at p. 836.) Evidence that someone other than Vasquez killed Jabar was weak. Baeza’s statement to the police and his trial testimony were confusing. Per his recorded statement, Baeza told the police he had never seen the shooter before. When Baeza’s mother interjected that Baeza had said it was “Jason,” Baeza said the shooter was Mexican and “Jason’s White.” Baeza’s mother clarified, “Jason’s Mexican,” and Baeza then agreed, “Oh. So yeah. Jason did it.” At trial, Baeza initially denied telling the police he saw the shooter’s face and identifying the shooter by name. He then testified that he identified Jason as the shooter because Jason and Jabar had “ultra beef” with each other. Although Vasquez argues that Jimenez’s testimony would have bolstered the theory that Jason killed Jabar, Jimenez’s testimony would not have clarified Baeza’s testimony. Jimenez could merely confirm that Jabar and Jason had a vague “beef” over her or a dog and that Jason pointed an airsoft gun at 10 Jabar many months before the shooting. She could not give direct or circumstantial evidence actually or inferentially linking Jason to Jabar’s killing. On the other hand, the evidence admitted overwhelmingly supported the finding that Vasquez was the shooter. The shooter, as shown in video surveillance, appeared to have a hairline or bald spot similar to Vasquez’s. The footage further depicted the shooter touching a car. DNA analysis established that Vasquez’s DNA was on that car to a high statistical probability. It was unclear how Vasquez’s DNA could have gotten on an apparently random car unless he touched it after shooting Jabar. Also, just before he was shot, Jabar told his friend that two guys had asked Jabar where he was from, asked for Jabar’s name, and Jabar lied and said his name was Dray. Jabar’s statements suggest he did not know the shooter: had he and the shooter known each other, the shooter likely would not have asked for Jabar’s name and there would have been no reason for Jabar to lie about his name. Finally, the shooter got into a white car similar to the car codefendant Thompson drove, and Thompson’s cellphone was in the area of the shooting when Jabar was killed. Thompson had been friends with Vasquez’s dead brother. Thompson therefore had a connection to Vasquez, and their relationship supported a reasonable inference that Vasquez was the shooter. Thus, Vasquez has not demonstrated that, had the trial court allowed Jimenez’s testimony, it is reasonably probable he would have received a more favorable verdict. II. Custody Credits The trial court awarded Vasquez 1,070 days of custody credits. Vasquez contends, and the Attorney General concedes, 11 he is entitled to one more day. We agree. Vasquez was arrested on August 27, 2021. The trial court sentenced him on August 1, 2024. Vasquez’s total number of actual days in custody, including the days of arrest and sentencing, is 1,071. (See generally People v. Adams (2018) 28 Cal.App.5th 170, 180 [defendant is entitled to credit for all days in presentence custody, including days of arrest and sentencing].) 12 DISPOSITION The judgment is modified to reflect a recalculated award of 1,071 days of actual custody credit. In all other respects, the judgment is affirmed. We direct the trial court to prepare an amended abstract of judgment reflecting the modification and to transmit it to the California Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ADAMS, P. J. We concur: HANASONO, J. PÁNUCO, J. 13