P. v. Rauda

Filed 4/20/06 P. v. Rauda CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Maribeth Halloran, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Together with Paul Cortez, appellant Matthew Vincent Rauda robbed and killed Ernesto Acosta on April 14, 2003. They were charged with murder, robbery and burglary. Cortez pled guilty to robbery and testified against appellant in exchange for dismissal of the remaining charges and a nine-year prison lid. After jury trial, appellant was found guilty of murder and robbery; a personal firearm use allegation was found true. (Pen. Code, §§ 187, subd. (a), 211, 212.5, subd. (a), 12022.5, subd. (a)(1).)^[1] Appellant was found not guilty of burglary and a special allegation that he intentionally discharged a firearm proximately causing death was found not true. (§§ 459, 460, 12022.53, subd. (d).). Appellant was sentenced on count 1 (murder) to an aggregate term of 29 years-to-life. On count 2 (robbery), an aggregate term of 10 years was imposed and stayed.

Appellant raises two claims of instructional error. First, he argues the jury was misinstructed on the intent required to aid and abet the crime of robbery. Next, he contends the court had a sua sponte obligation to instruct on the concept of â€