P. v. Banda

Filed 1/31/07  P. v. Banda CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 of the Superior Court of Los Angeles County.

Thomas I. McKnew, Jr., Judge.  Affirmed.

            David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

            Juan Jose Banda appeals from the judgment imposed after a jury convicted him of first degree murder (Pen. Code, §  187; undesignated section references are to that code) and found that he personally and intentionally discharged a firearm, causing death (§  12022.53, subds. (b)-(d)), and the court found he had suffered two prior strike convictions (§§  667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§  667, subd. (a)(1)), and a prior prison term (§  667.5(b)).  Sentenced to a term of 105 years to life, appellant contends that it was error not to instruct the jury on the lesser included offense of voluntary manslaughter.  We disagree, and affirm the judgment.^[1]

FACTS

            Appellant was an Hawaiian Gardens neighbor of the victim, Jaime Rodriguez.  In mid-2003, Rodriguez engaged appellant's father, Ulfrano Banda, with whom appellant lived, to perform some plastering or stucco work at Rodriguez's house.  The price was $500, of which Rodriguez paid $300 and promised to pay the rest after returning from Bakersfield.  While Rodriguez was there, between late July and September 2003, his son obtained and delivered building materials for Ulfrano Banda, using Rodriguez's truck.  According to Rodriguez's wife, when he returned he considered his debt to Ulfrano to have been paid by the son's activity.  On one occasion thereafter, Ulfrano Banda challenged Rodriguez about paying.  The next morning, Rodriguez drove his truck in front of Ulfrano Banda, who was on a bicycle, and said he would not pay.  According to Ulfrano Banda, this incident occurred several months before the shooting.  Ulfrano also testified that he did not tell appellant about his money problems with Rodriguez.

            Shortly after noon on December 26, 2003, another neighbor, Veronica Beltran, observed appellant approach Rodriguez in the latter's driveway.  Rodriguez gestured as if to say, â€