P. v. Cisneros

Filed 6/29/06 P. v. Cisneros 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Tricia Ann Bigelow, Judge. Affirmed and modified, with directions.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Cisneros.

Colleen M. Rohan, under appointment by the Court of Appeal, for Defendant and Appellant Eric Fernandez.

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Alberto Hernandez.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant Armando Salmon.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Servin.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Defendants Jesus Cisneros (Cisneros), Eric Fernandez (Fernandez), Alberto Hernandez (Hernandez), Armando Salmon (Salmon), and Rubin Servin (Servin) appeal from a judgment entered after a jury trial in which defendants were convicted of the robbery, torture, and special circumstance murder of victim Miguel Trejo (Trejo) and the robbery and burglary of victim Alfonso Gomez (Gomez).

Defendants were convicted of count 1, first degree murder of Trejo (Pen. Code, § 187, subd.(a));^[1] count 2, torture of Trejo (§ 206); count 3, second degree robbery of Trejo (§ 211); count 4, first degree robbery of Gomez (§ 211); count 5, first degree burglary of Gomez (§ 459); and count 6, dissuading a witness, Gomez, from reporting a crime (§ 136.1, subd. (b)(1)).

As to count 1, the jury found to be true the special circumstance allegations of section 190.2, subdivision (a)(17), that the murder was committed during the commission of a robbery, and of section 190.2, subdivision (a)(18), that the murder involved the infliction of torture. The jury also made the special findings that a principal was armed with a handgun during the commission of the crimes (§ 12022, subd.(a)(1)); that defendants inflicted great bodily injury during the robbery of Trejo (§ 12022.7, subd.(a)); that Salmon used and discharged a handgun in the crimes against Trejo (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d)); and Fernandez and Salmon used a handgun in the crimes against Gomez (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).

We direct the trial court to prepare a corrected abstract of judgment as to Cisneros and Salmon in accordance with the terms of this decision, and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.

CONTENTIONS

Defendants^[2] contend that (1) the evidence was insufficient to support their convictions; (2) the trial court erred in admitting and excluding evidence; (3) they received ineffective assistance of counsel and the prosecutor engaged in misconduct when Gerardo Altamirano (Altamirano) testified that the trial court would determine the truthfulness of his testimony; (4) the trial court made instructional errors; and (5) the trial court made sentencing errors.

The People concede as to Cisneros, and urge as to Salmon, that their abstracts of judgment should be amended to reflect the correct gun enhancements on count 4.

FACTS AND PROCEDURAL HISTORY

Trejo was murdered on June 8, 2003. A week prior to his murder, he had moved into the Alhambra apartment of Gomez, a relative of his brother's wife. At 10:00 p.m. on June 7, 2003, in a telephone conversation with his brother Saul, Trejo said that he and Hernandez would pick up Saul's security guard uniform and bring it to him in the morning.

Altamirano testified at trial that he and Cisneros picked up Hernandez and Trejo on the night of June 7, 2003. At 11:00 p.m., Cisneros, Hernandez, Altamirano, and Trejo drove to Servin's house. Salmon and Fernandez were present with three other men.

Altamirano testified that Trejo and defendants entered a shed in Servin's backyard. Altamirano could hear the sounds of punches, screaming, someone being knocked down, moaning, and duct tape being unrolled. Hernandez asked Trejo for the location of the marijuana that Trejo had stolen from him. Altamirano then heard a gunshot, and Salmon ran out of the shed, handing a gun to Altamirano. Fernandez and Cisneros went in and out of the shed several times, and at one point, Fernandez told some of the other men present to leave. Cisneros told Altamirano that â€