P. v. Huerta

Filed 1/10/07  P. v. Huerta CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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        A jury convicted defendant Rickey Carl Huerta of the willful, deliberate, and premeditated attempted murder of Matt Tallman, a peace officer engaged in the performance of his duties (count 1; Pen. Code, §§ 664/187; undesignated section references are to the Penal Code); assault with a firearm upon Tallman, a peace officer engaged in the performance of his duties (count 2; § 245, subd. (d)(1)); assault with a firearm upon Jamin Martinez, a peace officer engaged in the performance of his duties (count 3; § 245, subd. (d)(1)); possession of a firearm by a convicted felon on March 21, 2004 (count 4; § 12021, subd. (a)(1)); misdemeanor infliction of corporal injury resulting in a traumatic condition upon defendant's spouse (count 5; § 273.5, subd. (a)); discharging a firearm at an occupied building on March 14, 2004 (count 6; § 246); and possession of a firearm by a convicted felon on March 14, 2004 (count 7; § 12021, subd. (a)(1)). 

        The jury also found:  As to counts 1 and 2, defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and intentionally and personally discharged a firearm causing great bodily injury (§§ 12202.53, subds. (b)-(d), (e)(1)).  As to counts 2 and 3, defendant used a firearm  (§§ 12202.53, subd. (b), 12022.5, subds. (a), (d)).  As to count 3, defendant intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)). 

        In a bifurcated proceeding, the trial court found defendant had suffered a prior serious felony that constituted a strike (§§ 667, subds. (a), (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). 

        After denying defendant's motion to strike his prior convictions, the trial court sentenced him to a determinate state prison term of 20 years plus a consecutive indeterminate term of 55 years to life. 

        Defendant contends the trial court committed numerous instructional errors; he also contends there was insufficient evidence to support his conviction on count 5 (infliction of corporal injury with traumatic condition on his spouse).  The People concede the last point.  We shall reverse defendant's conviction on count 5 and remand for resentencing on the lesser included offense of battery; in all other respects we shall affirm.

FACTS

        March 14, 2004 (Counts 6 & 7)

        On March 14, 2004, Manjit Singh Sivia was working at Steve's Liquor in the North Highlands area of Sacramento.  He heard three or four gunshots, then found the front window broken and glass all over the floor.  He did not see who had fired the shots. 

        Sacramento County Sheriff's Deputy Kevin Mickelson found four shell casings in the parking lot and blood at the store's entry.  Eyewitnesses described a truck involved in the shooting; the description fit a truck owned by Virginia Huerta, defendant's wife.  Deputy Mickelson contacted her at home and asked permission to search the truck.  Seeming agitated, she refused. 

        After the March 21, 2004, incident recounted below, investigating officers determined that the shell casings and a bullet fragment recovered from Steve's Liquor matched casings found in defendant's home.  All had been fired from a .380-caliber handgun found on top of defendant's refrigerator. 

        March 21, 2004 (Counts 1-5)

        Defendant, Virginia, and their sons Joseph and Rickey, Jr., lived in North Highlands.  Defendant and Virginia had been having marital problems.  Defendant had been acting paranoid and talking about suicide.  During past arguments, Virginia had threatened to call the police but usually just left to let things settle down.  However, she might have called the police a couple of times before March 21, 2004. 

        On the afternoon of March 21, defendant was barbecuing in the back yard, while Virginia sat in the living room with her son Angelo, who had come for a visit.^[1]  She was not helping defendant because she was upset about his use of â€