People v. Smith CA6

I. FACTUAL AND PROCEDURAL BACKGROUND2

“Salinas Police Officer Raphael Villalvaso responded to the scene of a shooting. He stopped a van driven by Jesse Ballesteros. Ballesteros carried three passengers: Humberto Estrada; Mondo [sic][3] Levario; and [Smith]. Officer Villalvaso asked Ballesteros whether any weapons or narcotics were in the van. Ballesteros said ‘maybe’ and ‘there might be a gun in the car’ and then consented to a search of the van. Officer Villalvaso found a loaded gun under the right front seat. In an interview, Ballesteros told Officer Villalvaso that, when the van was stopped, [Smith] exclaimed, ‘[O]h, shit, I have a gun.’ “Ballesteros visited [Smith] in jail after [Smith] had telephoned Ballesteros’s mother. [¶] . . . [¶] “In his testimony, Ballesteros admitted knowing [Smith] for six to eight years and becoming friends with him; he denied making the statements to Officer Villalvaso which

2 We take the facts of Smith’s underlying conviction from our opinion in his prior appeal (People v. Smith (Oct. 8, 1999, H018396) [nonpub. opn.]), and from the record in that appeal, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) 3…