P. v. Carranza

Filed 6/21/06 P. v. Carranza CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

This appeal arises from a 1975 shooting at a Contra Costa County restaurant and a jury trial 28 years later, in which appellant Ismael Tovar Carranza was convicted of the first degree murder of his wife and the attempted murder of his wife's sister. On appeal, he claims that his federal and state constitutional rights to a speedy trial were infringed. He also asserts several errors were made in his sentencing. We shall affirm the conviction, but remand the matter to the trial court to correct certain sentencing errors.

STATEMENT OF THE CASE

On February 27, 2004, the Contra Costa County District Attorney filed an information charging appellant with the September 1, 1975 murder of Rosemary Carranza (Pen. Code, §187–count one),[1] and the attempted murder of Linda Gutierrez (§§ 187/664–count two), accompanied by allegations that he used a personal firearm in each count (§ 12022.5, subd. (a)(1)).

Appellant filed a motion to dismiss the information on or about August 6, 2004, on the ground that the 28-year delay between the incident and trial amounted to a denial of the right to a speedy trial under the federal and state constitutions. The court denied the motion on August 17, 2004. On August 25, 2004, after a six-day trial, the jury found appellant guilty of first degree murder and attempted murder, and found the firearm allegations to be true. The trial court sentenced appellant on September 20, 2004, to an indeterminate life term on count one, with a consecutive term of five years for the firearm use enhancement to count one, and a concurrent term of not less than 20 years on count two, with a concurrent term of five years for the firearm use enhancement to count two. The court also imposed a $2,400.00 restitution fine. Appellant received credit for 472 days served.

Appellant filed a notice of appeal on September 23, 2004.

STATEMENT OF THE FACTS

Appellant and Rosemary Carranza married in 1968 and, during their marriage, they had two daughters and a son. In 1975, however, they were in divorce proceedings. Appellant had abused Rosemary and, by August, they had lived apart for six months. About a month before the shooting, Rosemary's sister, Linda Gutierrez, heard appellant say of Rosemary, â€