Filed 12/7/05 P. v. Acosta CA2/8

Opinion following transfer

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment in the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Affirmed.

Gregory L. Cannon, 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, Senior Assistant Attorney General, Linda C. Johnson, Lawrence M. Daniels and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

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On September 7, 2005, our Supreme Court transferred this case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black). We hereby vacate our decision filed April 14, 2005, and issue the following decision:

Defendant and appellant Jesus Xavier Acosta appeals from the judgment entered following a jury trial that resulted in his conviction of voluntary manslaughter. He contends: (1) the trial court prejudicially erred in failing to give CALJIC No. 2.01; and (2) the trial court committed sentencing error under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accord with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant fatally shot Cesar Abrica, known as â€