P. v.
Filed 6/26/12 P. v. Flores
CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
SANTIAGO
FLORES,
Defendant and Appellant.
B227042
(Los Angeles
County
Super. Ct.
No. BA360080)
APPEAL from
a judgment of the Superior Court
of
County, Ronald H. Rose, Judge.
Affirmed as modified.
Dennis L.
Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka,
Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant, Santiago Flores, of attempted
willful, deliberate and premeditated murder (Penal Code,
subd. (a)) and found it was committed for the benefit of a
firearm in the commission of the offense.
(§ 12022.53, subds. (b), (c).) Defendant was sentenced to life with the
possibility of parole plus 30 years.
Defendant argues there was insufficient evidence of attempted murder and
premeditation. Defendant further asserts
it was fundamentally unfair for the
prosecutor to renege on an agreement to instruct on a lesser related
offense. We affirm the judgment but
modify the sentence to delete the 10-year enhancement imposed under section
186.22, subdivision (b)(1)(C) and to impose a 15-year wait for release on
parole.
II. THE EVIDENCE
A. The Prosecution Case
On August 1, 2009, Erick Perez was
returning home from an errand around 11 p.m. He was approached by five “cholos” yelling a
gang name. One of the five young men
spoke to Mr. Perez. Mr. Perez
was asked where he was from.
Mr. Perez said he was not from anywhere. Mr. Perez said he lived there. Defendant pulled a gun from his
waistband. Defendant pointed it at
Mr. Perez. Defendant fired a shot
and Mr. Perez ran. A chase
ensued. The five assailants chased
Mr. Perez. As he was running,
Mr. Perez heard four more shots.
Defendant lived near Mr. Perez.
Mr. Perez had seen defendant in the neighborhood. Mr. Perez admitted he had been convicted
of a felony in 2005 and of a misdemeanor.
Mr. Perez’s
girlfriend, Brenda Santoyo, testified.
She heard Mr. Perez returning home.
She looked out a window and saw “gang members” screaming out their affiliation. She ran outside and told the assailants to
leave Mr. Perez alone. Ms. Santoyo
recognized defendant. He lived near her. Defendant had dated a woman Ms. Santoyo
knew. Ms. Santoyo saw defendant pull a
gun from his waistband. She saw his face
clearly. He looked straight at her. He had two green tattoos next to his
eyes. Defendant chased Mr. Perez as
he was running away. Ms. Santoyo saw a
gun in defendant’s hand. She heard five
shots. Ms. Santoyo acknowledged she had
been convicted of a felony in 2009.
Shortly
after the shooting, Detective Jorge Cervantes and a partner detained five
Latinos who matched the suspects’ descriptions.
Defendant was one of the five Latinos.
At a field show-up, Mr. Perez identified defendant. However, he was not able to identify any of
the other four men. Mr. Perez’s
identification was based on defendant’s face and clothing. Also at the field show-up, Ms. Santoyo
identified all five Latinos, including defendant. At trial, Mr. Perez was initially
hesitant to make an in-court identification of defendant. Mr. Perez admitted he was afraid to
testify. Mr. Perez subsequently
identified defendant as the person who fired the gun.
Officer
Joseph Fransen testified concerning defendant’s gang. Defendant was an admitted member of a local
gang. He had a gang moniker. The shooting occurred within the gang’s
territory. Defendant’s gang engaged in: attempted murders; shootings; firearm
assaults; grand theft of automobiles; firearms possession; and possession of narcotics
for sale. Officer Fransen testified the
shooting was committed for the gang’s benefit.
B. Defense Evidence
James
Belknap, an investigator, and Angelina Villegas, Mr. Perez’s neighbor,
both testified the lighting in the area of the shooting was poor. Additionally, Ms. Villegas testified
that at the time of the assault, she heard a voice. The voice she heard did not sound like
defendant’s.
III. DISCUSSION
A. Sufficiency Of The Evidence
Defendant
argues the evidence was insufficient to sustain his attempted murder conviction
and the deliberate, willful and premeditated finding. We disagree.
Defendant, a member of a violent gang, was armed with a loaded handgun. He was in the company of four fellow gang
members. They accosted Mr. Perez. They announced their gang affiliation. They asked where Mr. Perez was
from. Without provocation, defendant
pulled out a gun, aimed it at Mr. Perez and fired. During the ensuing chase, defendant fired his
weapon four more times. Viewing the
evidence in the light most favorable to the judgment, this was substantial
evidence defendant committed a willful, deliberate and premeditated attempted
murder. (See People v. Brady (2010) 50 Cal.4th 547, 561-565;
849-851.)
B. The Jury Instruction Discussions
Defendant
argues the prosecutor reneged on an agreement to instruct the jury on assault
with a deadly weapon as a lesser related offense. Defendant asserts this violated his due
process rights. As defendant concedes,
he did not raise this argument in the trial court. As a result, it has been forfeited. (See People
v. Weaver (2012) 53 Cal.4th 1056, 1082; People
v. Fuiava (2012) 53 Cal.4th 622, 726-727.)
Moreover, the accused has no right, absent the prosecution’s
acquiescence, to a lesser related offense instruction. (People
v. Nelson (2011) 51 Cal.4th 198, 215; People
v. Birks (1998) 19 Cal.4th 108, 136.)
Our Supreme Court has repeatedly held that this rule does not violate a
defendant’s due process rights under the federal
or state Constitutions. (
p. 215; People v. Taylor (2010) 48
Cal.4th 574, 622; People v. Rundle (2008)
43 Cal.4th 76, 146-148, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Therefore, trial counsel was not ineffective
for failure to object on due process grounds.
(See People v. Moore (1990)
224 Cal.App.3d 234, 240; see generally, In
re Lucas (2004) 33 Cal.4th 682, 721-722.)
And nothing precluded the prosecutor from changing a tentative decision
on the jury instructions to be given.
(See People v. Hall (2011) 200
Cal.App.4th 778, 781-782.) Defendant has
not cited any authority that compels a contrary conclusion. Moreover, the evidence against defendant was
very strong. The defense centered on
misidentification. The jury clearly
resolved that issue against defendant.
It is not reasonably probable the verdict would have been more favorable
to defendant had the jury received the lesser related offense instruction. (Cal. Const., art. VI, §13;
at p. 783.)
C. The Gang Enhancement
Defendant
correctly contends it was error to impose a consecutive 10-year term under
section 186.22, subdivision (b)(1)(C). (
1007, 1011; People v. Camino (2010)
188 Cal.App.4th 1359, 1381-1382.) The
sentence must be modified to delete that 10-year term. The abstract of judgment must be amended
accordingly.
D. Duration Of Indeterminate Term
The oral
pronouncement of judgment states defendant received a life term plus 20 years
of enhancements. The correct
indeterminate sentence is a life term with
a minimum 15-year wait for parole eligibility.
(§ 186.22, subd. (b)(5); People v.
Lopez, supra, 34 Cal.4th at pp. 1004-1005.)
The Attorney General argues the sentence must be corrected to state
there is a 15-year minimum parole date (and delete the gang enhancement). We agree.
The abstract of judgment fails to state the duration of the
indeterminate term. The abstract of
judgment must be corrected to state defendant was sentenced pursuant to section
186.22, subdivision (b)(5) and is subject to a 15-year minimum wait for parole
eligibility.
IV. DISPOSITION
The
sentence is modified to delete the 10-year term imposed under Penal Code
section 186.22, subdivision (b)(1)(C).
The sentence is further modified to reflect a life term with a 15-year
parole eligibility wait. Upon remittitur
issuance, the clerk of the superior court must amend the abstract of judgment
and deliver a copy to the California Department
of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
We concur:
ARMSTRONG,
J.
KRIEGLER, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
