P. v. Martinez

Filed 4/5/06 P. v. Martinez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Thomas McKnew Jr., Judge. Affirmed as modified.

Joanna McKim, 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, Susan Sullivan Pithey and Erin M. Pitman, Deputy Attorneys General, for Plaintiff and Respondent.

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SUMMARY

Alfredo Martinez was convicted of three counts of attempted murder, with firearm allegations found true. The trial court sentenced him to a term of life with the possibility of parole, plus 60 years for the firearm enhancement allegations. In this appeal, Martinez contends that the trial court prejudicially erred: (1) in qualifying two prosecution witnesses as expert witnesses to render their opinions on the subject of bullet penetration of a vehicle; (2) in failing to instruct the jury on assault with a firearm as a lesser included offense of attempted murder; (3) in instructing the jury with CALJIC No. 8.66.1 (concurrent intent for attempted murder); and (4) in increasing Martinez's sentence by 60 years for the firearm enhancement allegations. With the exception of the sentencing error conceded by the People, we affirm.

Factual and Procedural SYNOPSIS

Attempted Murder.

On the morning of August 14, 2003, Raymond Luevanos (â€