P. v. Gonzalez

Filed 3/30/06 P. v. Gonzalez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Gloria White-Brown, Judge. Affirmed.

J. Kahn, 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, Steven D. Matthews and Paul M. Roadarmel Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Daniel Gonzalez appeals his convictions for murder in the second degree and attempted voluntary manslaughter. He contends the court erred by improperly: (1) excluding evidence, relevant to his claim of self-defense, that the victim had two prior convictions, was a member of a criminal street gang, and was on probation at the time of the incident; (2) denying appellant's request for jury instructions on defense of others and failing to instruct, sua sponte, on the imperfect defense of others; (3) limiting the jury instruction clarifying the lack of an actual danger requirement for self-defense (CALJIC No. 5.51) to the attempted murder charge; (4) imposing an excessive sentence; and (5) staying, rather than striking, the firearm enhancements pursuant to Penal Code section 12022.53.[1]

We reject appellant's contentions and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellant and Arnold Ugarte, both high school seniors, had been engaged in a dispute for over a year, involving name calling and bumping into each other. Appellant testified that he reported the problem to school security, but the school took no action. During this period, he purchased a handgun for protection against Arnold. In December 1999, appellant, his brother, Robert Gonzalez, and friends Marcos Herrera and Rogelio Davila had a minor confrontation with Arnold in the high school parking lot, and then at a nearby donut shop. Appellant and his companions arranged to meet Arnold at a local park. Arnold showed up at the park with his girlfriend, Carolina Oyarzabal, and friend, Delfino Gomez.

Carolina stayed in the car while Arnold and Delfino approached appellant. Appellant and Arnold argued for about 10 minutes. Arnold said, â€