P. v. Ortega

Filed 3/30/06 P. v. Ortega 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Bob S. Bowers, Judge. Affirmed in part; reversed in part.

Steven Schorr, 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, Jaime L. Fuster and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Juan Manuel Ortega appeals from his convictions of multiple counts of first degree murder, kidnapping, carjacking, and various sentence enhancements. Some of the arguments he presents on sentencing have merit, others do not. We shall reverse as to those that do, and affirm as to the others.

FACTUAL AND PROCEDURAL SUMMARY

Since the issues presented concern claims of instructional error and error in sentencing, we present a brief factual summary. In doing so, we follow the appellate principle of reviewing the record in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Catlin (2001) 26 Cal.4th 81, 139.)

The principal witness in the case was a drug seller who used the name Juan Perez. His actual name is Ivan Sanchez, and we use that name in this summary even though the briefing refers to him as Perez. In August 2001, Sanchez's drug supplies were running low and he needed to replenish. He contacted another drug seller, Santo Pleitez, who agreed to try to find a drug supplier. Pleitez came up with a third person, later identified as Samuel Nolasco, who agreed to take Sanchez and Pleitez to a supplier at a particular location. On August 27, 2001, Sanchez drove his Toyota Corolla, with Pleitez as a passenger, to a location where they picked up Nolasco, who directed them to another location where they would meet the drug supplier. Sanchez was carrying $4,500 in cash to pay for the drugs he planned to buy. He told the two men that he did not want to deal with gang members, but they assured him that the person they were to meet was trustworthy. They drove to a taqueria.

After a time, Nolasco indicated that he saw the drug supplier arriving. He walked over to a parking lot and soon returned, telling the men that they had to go to another location because too many people were present at this one. They then drove to a nearby restaurant. As they drove off, Nolasco pointed to a Toyota 4-Runner that also was leaving the parking lot. The 4-Runner stopped at a gasoline station and the three men continued on to the location identified by Nolasco. They pulled into a parking space at that location. The 4-Runner soon arrived, and backed into another space. Nolasco exited the Corolla and went over to the 4-Runner. He returned suddenly saying, â€