P. v. Arroyo

Filed 1/31/07  P. v. Arroyo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Gary  R. Hahn, Judge.  Modified and as modified affirmed.

            Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence  M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

            Carlen Arroyo appeals from the judgment entered after a jury convicted him of murder and attempted murder, and found that those crimes were committed for the benefit of a street gang.  (Pen. Code, §  186.22, subd.  (b)(1)(A).)  We modify the abstract of judgment to correct a sentencing error, and affirm the judgment as modified.

FACTS AND PROCEDURAL HISTORY

            In the early morning hours of February 29, 2004, Carlen Arroyo shot and killed Giovanni Hernandez and shot and wounded Ramon Martinez.  Arroyo was convicted of murder (Pen. Code, §  187, subd.  (a)) and attempted murder (Pen. Code, §§  664/187, subd.  (a)), along with findings that each crime was committed for the benefit of, and with the intent to promote, a criminal street gang.  (Pen. Code, §  186.22, subd.  (b)(1)(A).)^[1]  When certain gun use and prior conviction enhancements were added in, the court sentenced Arroyo to a state prison term of 90 years to life.

            Conflicting accounts of the shooting were provided at trial by Martinez through his testimony and by Arroyo through a videotaped statement he gave to the police after he was arrested.  Evidence was admitted to show that Arroyo was a gang member, and that he killed Hernandez in response to some perceived act of disrespect because such retaliation bolstered the reputation and status of both Arroyo and his gang.

1.         Arroyo's Statement

According to Arroyo's statement to police, he was arrested in Kansas in January 2004 when a Kansas state policeman found marijuana in a rental truck Arroyo was driving.  Arroyo was on his way to Rhode Island to deliver the marijuana to Hernandez in exchange for $5,000.^[2]  Arroyo made bail and returned to his home in San Bernardino.  He then went to Rhode Island and met with Hernandez, who promised to give Arroyo money for a lawyer.  Arroyo stayed in Rhode Island for two weeks, but returned home when Hernandez failed to meet with him or give him any money.  Hernandez phoned Arroyo on February  27, 2004, said he was flying to Los Angeles to give Arroyo some money, and asked Arroyo to pick him up at the airport.

Arroyo picked up Hernandez, Martinez, and Hernandez's girlfriend at the airport on February  28, 2004.  Later that night, Arroyo borrowed a car and drove Hernandez and Martinez from San Bernardino to Los Angeles, where they picked up Jose Bravo.  According to the 30-year-old Arroyo, he had once belonged to Compton's CV 155 gang, but had not been a member since he was 16 years old, when his family moved out of the area.  Arroyo met Bravo two or three years earlier on a visit back to his old neighborhood, when he attended a party thrown by CV 155.  Arroyo visited Bravo almost weekly.

After picking up Bravo, the four men went to the El Potrero nightclub in Los Angeles.  While at the club, Hernandez told Arroyo he wanted to kill Arroyo's cousin for â€