Fear Not Law Articles: P. v. Moran

P. v. Moran

Filed 2/5/07 P. v. Moran CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

MARCOS VALDEZ MORAN,

Defendant and Appellant.

F049811

(Super. Ct. No. VCF131491D)

O P I N I O N

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Mike Farrell, Senior Assistant Attorney General, and Brian Alvarez and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Marcos Valdez Moran was convicted after jury trial of one count of second degree murder (count 1), two counts of attempted murder (counts 2 & 3), two counts of shooting at an inhabited dwelling (counts 4 & 5), one count of shooting a firearm from a vehicle at a person (count 6) and two counts of assault with a firearm (counts 7 & 8). The jury found true special allegations attached to all the counts that the offenses were committed for the benefit of a street gang. The jury found true special allegations attached to counts 1, 2, 3, 5 and 6 that a principal discharged a firearm causing great bodily injury in the commission of the offense. The jury found true special allegations attached to counts 7 and 8 that appellant personally used a firearm during the commission of the offense. (Pen. Code, §§ 187, subd. (a); 664; 246; 12034, subd. (c); 245, subd. (a)(2); 186.22, subd. (b)(1); 12022.53, subds. (d) & (e); and 12022.5, subd. (a).)^{^[1]}

Appellant was sentenced on count 1 to a term of 15 years to life, plus 25 years to life pursuant to section 12022.53, subdivision (e)(1), plus 10 years pursuant to section 186.22, subdivision (b)(1). On counts 2 and 3, he was sentenced to consecutive terms of life, plus 25 years to life pursuant to section 12022.53, subdivision (e)(1). He was sentenced to a concurrent term of 15 years to life on count 4. On count 5, he was sentenced to a concurrent term of 15 years to life plus 25 years to life pursuant to section 12022.53, subdivision (e)(1). Sentence was stayed on counts 6, 7 and 8 pursuant to section 654.

Appellant argues that the convictions must be reversed because there was insufficient corroboration of an accomplice's testimony. He also raises two claims of sentencing error. First, he argues that the terms imposed for the section 186.22 gang enhancements attached to counts 1, 4 and 5 must be stricken because the jury did not find that appellant personally used a weapon in the commission of these offenses. Second, he contends that the gang enhancement attached to count 1 must be stricken because second degree murder is a violent felony that is punishable by life imprisonment. The Attorney General concedes the second sentencing claim and we accept this concession as properly made. The rest of appellant's arguments are unpersuasive. Therefore, we will modify the judgment to strike the section 186.22 gang enhancement that is attached to count 1 and, as modified, affirm the judgment.

FACTS

At approximately 9:00 p.m. on August 2, 2004, Danielle Olivera was standing outside the home of Philip and Marie Marquez in Visalia.^{^[2]} Danielle saw a red Mercury Cougar approaching the house at a high rate of speed. The Cougar attempted to make a U-turn in front of the house. It turned too wide and hit the side of Danielle's van. As the Cougar drove away, Danielle and Marie got into the van and followed the Cougar to learn its license plate number. After following the Cougar for a few blocks, Danielle saw the Cougar stop and saw three men get into the vehicle.

Meanwhile, Brenda Navarro and her husband, Edgar Rodriguez, were standing in the driveway of a house belonging to Brenda's mother. Appellant and Bernabe Rayo were also standing in front of the house. Brenda testified that Mariano Silva drove up in a Cougar and stopped. Mariano, Edgar and appellant were Sureno gang members. Mariano was angry and told them that â€

Description	Appellant was convicted after jury trial of one count of second degree murder (count 1), two counts of attempted murder (counts 2 and 3), two counts of shooting at an inhabited dwelling (counts 4 and 5), one count of shooting a firearm from a vehicle at a person (count 6) and two counts of assault with a firearm (counts 7 and 8). The jury found true special allegations attached to all the counts that the offenses were committed for the benefit of a street gang. The jury found true special allegations attached to counts 1, 2, 3, 5 and 6 that a principal discharged a firearm causing great bodily injury in the commission of the offense. The jury found true special allegations attached to counts 7 and 8 that appellant personally used a firearm during the commission of the offense. (Pen. Code, SS 187, subd. (a); 664; 246; 12034, subd. (c); 245, subd. (a)(2); 186.22, subd. (b)(1); 12022.53, subds. (d) and (e); and 12022.5, subd. (a).) Appellant was sentenced on count 1 to a term of 15 years to life, plus 25 years to life pursuant to section 12022.53, subdivision (e)(1), plus 10 years pursuant to section 186.22, subdivision (b)(1). On counts 2 and 3, he was sentenced to consecutive terms of life, plus 25 years to life pursuant to section 12022.53, subdivision (e)(1). He was sentenced to a concurrent term of 15 years to life on count 4. On count 5, he was sentenced to a concurrent term of 15 years to life plus 25 years to life pursuant to section 12022.53, subdivision (e)(1). Sentence was stayed on counts 6, 7 and 8 pursuant to section 654. Appellant argues that the convictions must be reversed because there was insufficient corroboration of an accomplice's testimony. He also raises two claims of sentencing error. First, he argues that the terms imposed for the section 186.22 gang enhancements attached to counts 1, 4 and 5 must be stricken because the jury did not find that appellant personally used a weapon in the commission of these offenses. Second, he contends that the gang enhancement attached to count 1 must be stricken because second degree murder is a violent felony that is punishable by life imprisonment. The Attorney General concedes the second sentencing claim and we accept this concession as properly made. The rest of appellant's arguments are unpersuasive. Therefore, court modify the judgment to strike the section 186.22 gang enhancement that is attached to count 1 and, as modified, affirm the judgment.
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