Fear Not Law Articles: P. v. Morales

P. v. Morales

Filed 1/23/07 P. v. Morales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE,

Plaintiff and Respondent,

JUAN HERNANDEZ MORALES,

Defendant and Appellant.

G036564

(Super. Ct. No. 05CF1733)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

A jury convicted Juan Hernandez Morales of one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (e)) and found true the allegation he personally used a firearm in the commission of the crime (Pen. Code, § 12022.53, subd. (b)). The trial court sentenced Morales to a prison term of two years for the robbery conviction, enhanced by a term of 10 years for personal use of a firearm.

Morales challenges his conviction on two grounds: (1) sufficient evidence does not support the firearm use enhancement; and (2) the trial court erred by failing to instruct the jury sua sponte on an enhancement for being armed (Pen. Code, § 12022, subd. a)(1)) as a lesser included enhancement of personal firearm use.

We conclude the evidence supported the firearm use enhancement and under People v. Majors (1998) 18 Cal.4th 385, 411 (Majors), the trial court was not required to instruct the jury sua sponte on lesser included enhancements. The United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) did not overrule Majors or undermine its validity. We therefore affirm the judgment.

Facts

On March 14, 2005 at about 7:00 p.m., Miguel Lara was walking home along Pacific Street in Santa Ana when Morales, riding a bicycle, approached him from behind. After passing Lara, Morales stopped, threw down the bicycle, and walked back toward Lara. Morales asked Lara where he lived. Lara replied, â€

Description	A jury convicted defendant of one count of second degree robbery (Pen. Code, SS 211, 212.5, subd. (e)) and found true the allegation he personally used a firearm in the commission of the crime (Pen. Code, S 12022.53, subd. (b)). The trial court sentenced Morales to a prison term of two years for the robbery conviction, enhanced by a term of 10 years for personal use of a firearm. Defendant challenges his conviction on two grounds: (1) sufficient evidence does not support the firearm use enhancement; and (2) the trial court erred by failing to instruct the jury sua sponte on an enhancement for being armed (Pen. Code, S 12022, subd. a)(1)) as a lesser included enhancement of personal firearm use. Court conclude the evidence supported the firearm use enhancement and under People v. Majors (1998) 18 Cal.4th 385, 411 (Majors), the trial court was not required to instruct the jury sua sponte on lesser included enhancements. The United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) did not overrule Majors or undermine its validity. Court therefore affirm the judgment.
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