P. v. Arenas

Filed 5/30/06  P. v. Arenas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Philip  S.  Gutierrez, Judge.  Affirmed.

            Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc  E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

            Shortly before jury selection, appellant Valentino Arenas entered an open plea of guilty to one count of first degree murder in violation of Penal Code section 187.[1]  Appellant admitted the special circumstances that the victim was a peace officer, that appellant had lain in wait, and that the murder was intentional and perpetrated by discharging a firearm from a motor vehicle pursuant to section 190.2, subdivisions (a)(7), (15), and (21).  Appellant also admitted the allegations that he used a firearm pursuant to section 12022.53, subdivision (d) and that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).  Pursuant to sections 190.2 and 190.5, the court imposed a sentence of life without the possibility of parole (LWOP).

            Appellant appeals on the grounds that:  (1) The trial court abused its discretion by sentencing appellant to LWOP rather than a straight life sentence pursuant to section  190.5; and (2) the trial court erred by imposing an additional term for the firearm-use enhancement pursuant to section 12022.53 subdivision (d) because section 12022.53, subdivision (j) precludes the imposition of a 25-year-to-life enhancement when the punishment for the underlying crime is LWOP.

FACTS

            Because appellant pleaded guilty prior to trial, we recite the facts revealed at the preliminary hearing.  On the afternoon of April 21, 2004, Officer Thomas Steiner of the California Highway Patrol was murdered outside the Pomona courthouse where he had testified in a traffic court matter.  The cause of death was a gunshot wound to the back of his head.  Detective Gregg Guenther, a homicide detective for the Pomona Police Department, was assigned to investigate the case.  A witness saw the uniformed Officer Steiner standing on the sidewalk next to the curb as if waiting for traffic to pass so that he could cross in the crosswalk.  The witness saw a red Acura drive up and stop in front of Officer Steiner.  The sole occupant of the Acura held a gun in his right hand.  He pointed the gun out the window at Officer Steiner and shot him three times.  The shooter was a male Hispanic with closely cropped hair.  The witness gave a detailed description of the Acura.  The car was found, and appellant was detained near the car.

            Detective Guenther played for the court a videotape of his interview with appellant.  Guenther read appellant his Miranda[2] rights and told him he wanted to talk about the shooting.  Appellant was 16 at the time of the interview.  Appellant admitted shooting Officer Steiner.  Before he shot Steiner he said â€