P. v. Romero

Filed 5/8/06 P. v. Romero CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Aldo Romero appeals from convictions of one count of second degree murder and eight counts of attempted voluntary manslaughter. He contends the trial court erred in admitting his confessions because they were made in response to questioning initiated by the police after he had invoked his right to counsel. He further contends the trial court erred in failing to exclude one victim/witness's pretrial and in-court identifications. In response to his third contention, that the trial court failed to instruct the jury that the offense of attempted voluntary manslaughter required proof of intent to kill, the People concede that the attempted voluntary manslaughter convictions must be reversed. As to the remaining conviction of second degree murder, we affirm.

STATEMENT OF THE CASE

Appellant was charged by an information filed on February 26, 1998, with the first degree murder of Eric Hamilton (Pen. Code, § 187)^[1] and nine counts of premeditated attempted murder (§§ 187, 664). The alleged victims of the attempted murder counts were Francisco Madrid (counts 2 and 5), Billy Nuon (counts 3 and 6), Alicia Martinez (count 4), Neddy Castellanos (count 7), Alejandro Chaidez (counts 8 and 10) and Sigifredo Altamirano (count 9). As amended on November 10, 2003, and January 13, 2004, it was alleged in connection with the murder count that appellant discharged a firearm from a vehicle with the intent to inflict great bodily injury and death, constituting a special circumstance (§ 190.2, subd. (a)(21)) and the basis for a sentence enhancement (§ 12022.55). In connection with the charges of attempted murder, counts 2, 4, 8, 9 and 10 alleged that appellant discharged a firearm from a vehicle with the intent to inflict great bodily injury and death (§ 12022.55) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Counts 3, 5, 6, and 7 alleged that appellant personally used a firearm in the commission of the offense (§§ 1203.06, 12022.5). On February 27, 1998, the prosecution filed its notification of intent to seek the death penalty.

Hearings on pretrial motions began on November 5, 2003, and jury trial began on November 10, 2003. The jury was sworn on January 14, 2004. Jury deliberations began on February 25, 2004, then began anew the following day after one of the jurors was replaced with an alternate due to a medical emergency. On March 17, 2004, the jury found appellant guilty of second degree murder on count 1, and of the lesser included offense of attempted voluntary manslaughter on counts 2, 4, 5, 6, 7, 8, 9 and 10, and found in connection with these counts that appellant did discharge a firearm from a vehicle with the charged intent and did personally use a firearm. The jury found appellant not guilty on count 3.

On May 17, 2004, appellant was sentenced to a prison term of 30 years to life, with credit for time served, and ordered to pay restitution and fines.

Appellant filed a timely notice of appeal on May 17, 2004.

STATEMENT OF FACTS

On the evening of August 16, 1997, a group of teenagers (including Ralph Dominic, Neddy Castellanos, Francisco Madrid, Alicia Martinez, Daniel Howry and Billy Nuon) were standing around the open garage and driveway at Kevin Fairbanks's house on Cumberland Avenue in San Leandro. Nuon testified that he, Madrid and Howry were members of a gang called the â€