P. v. Alvarez

Filed 8/16/06 P. v. Alvarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEALS from judgments of the Superior Court of Los Angeles County. Victoria M. Chavez, Judge. Modified and affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Alvarez.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Rodriguez.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

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Salvador Alvarez and Juan Carlos Rodriguez appeal from judgments entered upon their convictions by separate juries of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a), counts 1 & 2),[1] one count of shooting at an occupied vehicle (§ 246, count 3) and one count of shooting at an inhabited dwelling (§ 246, count 5). Alvarez also appeals from his conviction of a second count of shooting at an inhabited dwelling (§ 246, count 4) and Rodriguez from his conviction of one count of first degree murder (§ 187, subd. (a), count 6). With respect to both appellants, the jury found to be true as to all counts the allegation that they committed the offenses for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)), and, as to counts 1 and 2, the allegations that the offenses were willful, deliberate and premeditated (§ 664, subds. (e) & (f)) and were perpetrated upon a peace officer in the performance of his/her duties (§ 664, subd. (e)). With respect to Alvarez, the jury found to be true as to counts 1 and 2 the allegation that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) and, as to counts 3 through 5, the allegations that a principal was armed with a handgun within the meaning of section 12022.1, subdivision (a)[2] and a principal was armed with an assault weapon within the meaning of section 12022, subdivision (a)(2). With respect to Rodriguez, the jury found to be true as to counts 1 and 2 the allegation that he personally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c), as to counts 3 and 5 the allegations that he personally used a firearm within the meaning of section 12022.5, subdivision (a)(1)[3] and that he personally used an assault weapon within the meaning of section 12022.5, subdivision (b)(1),[4] and as to count 6, that he used a handgun in the commission of the offense within the meaning of section 12022.53, subdivisions (b), (c) and (d). The trial court sentenced Alvarez to life with the possibility of parole plus 20 years and Rodriguez to 104 years to life plus four additional life terms.

Alvarez contends that (1) the trial court violated his rights to due process and trial by jury by failing to instruct the jury in accordance with CALJIC No. 2.01, (2) the trial court violated his rights to due process and trial by jury on counts 3 through 5 by limiting CALJIC No. 2.02 to counts 1 and 2, (3) the trial court violated section 12022.53, subdivision (e)(2) by ordering that he is ineligible for parole for 15 years pursuant to section 186.22, subdivision (b)(5), and (4) the abstract of judgment must be corrected to strike the one-year sentences pursuant to section 12022, subdivision (a)(1), because the trial court did not impose them.

Rodriguez contends that (5) the trial court committed reversible error by allowing admission of his custodial confession obtained in violation of Miranda,[5] (6) the trial court erred in failing to instruct the jury in accordance with CALJIC No. 8.73, (7) there was insufficient evidence to sustain his conviction of counts 1 and 2, and (8) the cumulative effect of the trial court's errors mandates reversal. Rodriguez also joins in the contentions raised by his co-appellant to the extent they accrue to his benefit. (Cal. Rules of Court, rule 13; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)

Alvarez's judgment is modified to stay imposition of the section 12022, subdivision (a)(1) firearm enhancement on counts 3 through 5, and the judgments are otherwise affirmed.

FACTUAL BACKGROUND

The prosecution's evidence

The Lucient Street shooting

On August 16, 2004, at approximately 9:10 p.m., Manuel Venegas and his two sons, both of whom were members of the Chicano Gangsters criminal street gang, were at their home at 640 West Lucient Street in the City of Compton. Venegas heard more than 15 gunshots and threw himself to the ground. When he looked outside, he saw a white pickup truck leaving. The gunshots left bullet holes on the outside and inside of his house and in two of his vehicles.

At approximately 9:30 p.m., Deputy Rafael Rufino arrived at the Venegas residence in response to Venegas's call to police. When the deputy heard on the radio that a white pickup truck had been stopped on Harris Avenue, he took Venegas to view it. Venegas identified the pickup truck as the one leaving his house immediately after the gunshots.

Robert Keil, a senior criminalist for the Los Angeles County Sheriff's Department, recovered 14 expended 762-by-39 millimeter cartridge cases and three bullet fragments from the shooting. All of the casings bore the marking â€