P. v. Valera

Filed 4/25/06 P. v. Valera CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruffo Espinosa, Jr., Judge. Affirmed in part; reversed in part and remanded.

Gregory L. Cannon, 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, Robert F. Katz, Lawrence M. Daniels and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Carlos Flores Valera appeals from the judgment entered after a jury acquitted him of attempted murder (Pen. Code, §§ 664, 187, subd. (a)[1]; count 1) but found him guilty of the lesser included offense of attempted voluntary manslaughter (§§ 664, 192, subd. (a)) and of assault with a firearm (§ 245, subd. (a)(2); count 2). The jury also found true the allegations that defendant personally used a firearm during the commission of the attempted voluntary manslaughter (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) during both offenses.

For defendant's crime of attempted voluntary manslaughter, the court sentenced him to state prison for 12 years and 6 months, consisting of the upper term of 5 years and 6 months, plus 4 years pursuant to section 12022.5, subdivision (a), and 3 years pursuant to section 12022.7, subdivision (a). The sentence and enhancement on the assault with a firearm count were stayed pursuant to section 654.

On appeal, defendant contends his conviction for attempted voluntary manslaughter must be reversed, in that the trial court's instruction on that lesser included crime relieved the prosecution of its burden of proving that he acted with the specific intent to kill. Inasmuch as we conclude that defendant's conviction for attempted voluntary manslaughter must be reversed due to instructional error, we need not and do not reach the merits of his contention that under Blakely v. Washington (2004) 542 U.S. 296 the trial court improperly imposed the upper term based on facts that neither were admitted by him nor found true by the jury.

FACTS

Prosecution's Evidence

On August 6, 2003, Fernando Ceron Nieves (Ceron) and his family lived in an apartment in Montebello. Defendant lived in another apartment in the same building. That morning, Ceron did not offer to sell defendant any stolen property and had never before threatened to fight or kill defendant or any member of his family. In fact, the two men had never before spoken to one another.

Ceron was in the garage preparing to wash his wife's car when defendant approached and verbally abused and challenged Ceron. A heated argument between the two men erupted. When Ceron said he did not know what defendant was arguing about and did not know how defendant wanted to handle the matter, defendant swore at him and stated he would be back. Ceron considered defendant a madman and ignored him.

About five minutes later, defendant returned to the garage. Defendant approached Ceron from behind, angrily swore at him and simultaneously shot Ceron in his lower left flank. Ceron, who was unarmed, pleaded with defendant not to kill him. Defendant swore at Ceron again and fired his weapon two more times from a distance of three to six feet. The bullets struck Ceron under his left nipple and the left side of his waist.

Ceron threw himself on the gun and a struggle between the two men ensued. When Ceron gained possession of the gun, defendant became fearful and walked away. Ceron put the gun near the left rear tire of the car, fell to the ground and began to lose consciousness.

Within 10 minutes, officers from the Montebello Police Department responded to the scene of the shooting. Ceron, who was kneeling on the floor of the garage and bleeding profusely from his abdomen, told officers that defendant shot him but Ceron did not know why.

Officer Sean Hoffman detained defendant, Angelica Gonzalez (Gonzalez),[2] and defendant's stepson, Joseph Gonzalez (Joseph). All of them were yelling at one another as they approached Officer Hoffman and initially were uncooperative. Defendant had blood on his pants and T-shirt but appeared to be uninjured.

Joseph told Officer Hoffman that he awoke to the sound of gunshots. Joseph left his family's apartment and saw his mother, Gonzalez, and his sister standing at the rear of the apartment complex. They were screaming uncontrollably. Joseph rushed to his mother's side and saw defendant standing over Ceron and holding a .357 caliber revolver. Joseph grabbed defendant and took the gun away. Joseph then carried the gun to his apartment and hid it beneath a drawer in his bedroom.

Gonzalez told Officer James Egigian that she too was awakened by the sound of gunshots. Gonzalez ran outside but found no one. She then ran to the garage and saw defendant standing and holding a gun in his right hand. She saw Joseph take the gun and run back to their apartment.

A search of the garage by the police revealed no guns or knives. Joseph approached the officers and told them he had taken the gun and put it in his apartment. After obtaining a search warrant, the police searched defendant's apartment and recovered a .357 caliber handgun that contained six expended shells, as well as ammunition.

Ceron sustained two or three gunshot wounds to the abdomen and two gunshot wounds to his left leg. Paramedics transported Ceron to the hospital, where he underwent surgery for his injuries. He spent several weeks in the hospital in very critical condition. He spent two more weeks in another hospital where he received antibiotics and required a respirator. At the time of trial, Ceron continued to have difficulty breathing and other physical problems.

Defense

Defendant's version of the events differed markedly from that of the prosecution. According to defendant, on the morning in question, Ceron approached and asked him if he wanted to buy a video camera. Defendant believed Ceron was trying to sell him stolen property and curtly declined. When defendant turned to enter his apartment, Ceron struck defendant in the ear and asked, â€