P. v. Viveros
A jury convicted defendant Ismael Viveros, Jr., of murder (with the special circumstance of its occurrence in the commission of a robbery), robbery, and illegal possession of a firearm, along with related firearm enhancements. The court sustained recidivist allegations and sentenced defendant to state prison for a life term without the possibility of parole for the murder conviction, imposed a consecutive minimum term of 25 years for one of its firearm enhancements (staying the other), stayed sentence on the robbery conviction and its firearm enhancements, and imposed a concurrent term for the possession conviction. Defendant contends that the trial court should not have allowed the prosecution to amend the information after trial began to allege a different firearm enhancement. He contends that he was guilty only of extortion rather than robbery, so the court should have granted his motion for acquittal. He also disputes the sufficiency of the evidence to support the special circumstance, and the adequacy of the instruction related to it. He faults the trial court for refusing to instruct on the use of circumstantial evidence generally rather than just in the context of his mental state. Finally, he cites several deficiencies in the structuring of his sentence. Court affirm as modified.
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