P. v. Gonzales

Filed 1/31/07  P. v. Gonzales CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge.  Affirmed in part and reversed in part, with directions.

                        Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, A. Natasha Cortina and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

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                        A jury convicted Ruben Enrique Gonzales of first degree murder, finding he personally used a firearm to slay Armando Solorio Govea.  (Pen. Code, §§  187; 12022.5, subd.  (a).)  Defendant contends the trial court erred by excluding a prosecution witness's admission that heavy methamphetamine use made her paranoid in the years after she recounted what she knew about the crime to a police officer.  Defendant also argues the trial court erroneously admitted an incriminating detail this witness provided the police in her initial report, but which she could not independently recall when she testified.  For the reasons discussed below, we conclude these alleged evidentiary failings, if error, were either invited by defendant or harmless.  The Attorney General concedes defendant's parole revocation fine (see Pen. Code, §  1202.45) violates ex post facto principles and we therefore reverse that portion of his sentence, with directions to the trial court to correct the abstract of judgment.  We affirm the judgment in all other respects.

I

FACTUAL AND PROCEDURAL BACKGROUND

                        In May 1992, Angel Alcazar managed several apartments lining both sides of Leatrice Lane in Anaheim.  On May 11, shortly after midnight, as Alcazar crossed the lane to knock on an apartment door, he observed five or six men standing on the sidewalk.  Alcazar passed within 15 feet of the group.  Two of the men, Govea and defendant, were arguing.  Defendant appeared angry.  Alcazar recognized defendant, having seen him around the neighborhood.  Alcazar noticed defendant walk towards a pickup truck parked on the street.  The pickup housed a live-in camper in its truck bed.  Alcazar proceeded on his way to respond to an earlier noise complaint and did not see whether defendant entered the camper.  Suddenly, Alcazar heard three or four gunshots.  He turned to see Govea fall as defendant continued to point a â€