P. v. Martinez

Filed 5/5/06 P. v. Martinez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed with directions.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Senior Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant, Louis Robert Martinez, and two other defendants, Jason Lee Lucero and Paul Peter Aguilar, were tried before the same jury and convicted of several crimes, including premeditated attempted murder for the benefit of a criminal street gang, based on a March 1, 2003, shooting. Lucero was the shooter. Martinez and Aguilar were prosecuted as aiders and abettors to the premeditated attempted murder.

Lucero and Aguilar filed an earlier appeal in case number E035719. Martinez's contentions on this appeal are substantially similar to several of Aguilar's contentions in the related appeal. In addition, Martinez joins the contentions of Aguilar and Lucero in the related appeal, insofar as they may benefit him. (Cal. Rules of Court, rule 13(a)(5).) As our opinions in this case and in the related appeal demonstrate, none of Lucero's or Aguilar's contentions benefit Martinez.^[1]

Regarding Martinez's contentions on this appeal, we agree, and so do the People, with Martinez's claims of sentencing error. We strike Martinez's gang enhancements, which the trial court imposed but stayed on counts 2, 4, and 5. (Pen Code, § 186.22, subd. (b)(1)(C).)^[2] We also reverse the 15-year minimum parole eligibility date (MPED) which the trial court imposed on count 2, the premeditated attempted murder count. (§ 186.22, subd. (b)(5).) We remand the matter to the trial court with directions to modify the judgment accordingly, and to impose an MPED of seven years on count 2. (§ 3046, subd. (a)(1).) In all other respects, we affirm the judgment against Martinez.

PROCEDURAL HISTORY

The three defendants were charged in the same information with: conspiracy to commit murder (§ 182, subd. (a)(1); count 1); the willful, deliberate, and premeditated attempted murder of Daniel Pehrson (§§ 187, subd. (a) & 664, subd (a); count 2); residential burglary (§ 459; count 3); two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5); and actively participating in a criminal street gang (§ 186.22, subd. (a); count 6). Lucero was also charged with being a felon in possession of a firearm. (§ 12021, subd. (a)(1); count 7.)

It was further alleged that all three defendants intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) in counts 1 and 2, and committed counts 1, 2, and 3 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Additional allegations, including prior strike convictions, were alleged against Lucero and Aguilar, but not Martinez.

The jury was unable to reach a verdict on count 1, and a mistrial was declared on that count. The jury found all three defendants guilty as charged on the other counts and found the firearm and gang allegations true. Lucero was sentenced to 67 years to life; Aguilar to 50 years to life; and Martinez to 35 years to life.

Martinez's 35-year-to-life sentence consisted of 15 years to life on count 2, plus 10 years imposed but stayed for the gang enhancement on count 2, plus 20 years for the discharge enhancement on count 2. Additional terms were imposed but stayed on the other counts.

MARTINEZ'S CONTENTIONS

First, Martinez contends that the trial court erroneously instructed the jury that an aider and abettor may be guilty of premeditated attempted murder under the natural and probable consequences doctrine, even if the aider and abettor does not personally act with premeditation. Aguilar raised the same contention in the related appeal. Here, as in the related appeal, we conclude that the jury was properly instructed on the liability of an aider and abettor for premeditated attempted murder under the natural and probable consequences doctrine.

Second, Martinez contends, as did Aguilar, that the trial court's application of the principle announced in People v. Lee (2003) 31 Cal.4th 613 (Lee) constituted â€