P. v. Puga

Filed 6/28/06 P. v. Puga CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from judgments of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Puga.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Enrique Barajas.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellants Jose Luis Puga (Puga) and Enrique Barajas (Barajas) of first degree murder (Pen. Code, § 187, subd. (a))[1] (count 1); five counts of attempted willful, deliberate, premeditated murder (§§ 664/187, subd. (a) (counts 2-6); and shooting at an inhabited dwelling (§ 246; count 7). The jury found true with respect to both appellants that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury found true the allegation that, with respect to counts 1 through 6, a principal personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (b)-(e)(1)). The jury also found true the allegation that appellants personally inflicted great bodily injury with respect to counts 2 and 5 (§ 12022.7, subd. (a)). A prison-prior allegation against Puga was dismissed.

The court sentenced each appellant to a term of 114 years to life in state prison. Each sentence consisted of: (1) 25 years to life on count 1 and 25 years to life for the firearm use enhancement on that count; (2) consecutive life terms with a seven-year parole eligibility minimum on counts 2 and 5 with a term of 25 years to life for the firearm use enhancement on each count; (3) concurrent life terms with a minimum of seven years on counts 3, 4, and 6 with 20-year firearm enhancements; (4) a stayed term of five years (the midterm) on count 7; (5) stayed terms on the gang enhancements on all counts; and (6) stayed terms on the great bodily injury enhancements on counts 2 and 5.

Puga appeals on the grounds that: (1) his state and federal rights to due process of law were violated by the admission of victim Humberto Delgado's pretrial and courtroom identification of him; (2) the prosecutor's attacks on defense counsel and comments about encouraging gangsters violated Puga's federal and state rights to due process of law, and the harm was not cured by the court's admonitions; (3) the imposition of consecutive sentences violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Puga's federal constitutional rights to a jury trial and due process under the Sixth and Fourteenth Amendments. Barajas joins in Puga's contentions in Puga's opening brief, and he argues that the alleged errors resulted in specific prejudice to himself. Each appellant generally joins in the contentions in the other's opening brief.

FACTS

I. Prosecution Evidence

On January 27, 2002, at approximately 10:30 a.m., Humberto Delgado (Humberto) was preparing a meal for himself and his relatives in the common courtyard of the Wyvernwood apartments where his aunt lived. Juan Delgado (Juan), Humberto's 11-year-old brother, was in the courtyard playing with another cousin, R. Regalado (Regalado), and Regalado's friend, Victor. Jaime Delgado (Jaime) and Jesus Ceja (Ceja), also relatives of Humberto, were helping Humberto prepare the meal.[2]

A man in the parking lot began threatening Humberto and his companions. Humberto identified the man as Puga at trial and was sure of his identification. Puga was carrying a gun that appeared to be a semiautomatic weapon. Puga yelled, â€