P.v . Aguilar
Filed 9/6/06 P.v . Aguilar CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE
| THE PEOPLE, Plaintiff and Respondent, v. GABRIEL RENE DIAZ AGUILAR et al., Defendants and Appellants. | B179288 (Los Angeles County Super. Ct. No. KA059880) |
APPEAL from judgments of the Superior Court of Los Angeles County,
Philip S. Gutierrez, Judge. Modified and, as so modified, affirmed.
Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Rene Diaz Aguilar.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant Robert Frank Ramirez.
Colleen M. Rohan, under appointment by the Court of Appeal, for Defendant and Appellant Marco Antonio Salazar.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Donald George Sanchez.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Sanchez.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
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Gabriel Aguilar, Robert Ramirez, Marco Salazar, Donald Sanchez and Miguel Sanchez appeal the judgments entered following their conviction by jury of numerous gang related offenses arising out of six separate criminal incidents, committed over a five-month period by various combinations of the appellants. These offenses included two counts of murder, conspiracy to commit murder, attempted murder, robberies and assaults. (Pen. Code, § 187, subd. (a), 182, subd. (a)(1), 664/ 187, subd. (a), 211, 245, subd. (a)(1).)[1] The information alleged a criminal street gang enhancement with respect to each count, weapon enhancements where appropriate, a hate crime enhancement with respect to the count of attempted murder and a multiple murder special circumstance as to Ramirez and Salazar. (§§ 186.22, subd. (b)(1)(A), 12022, subd. (b), 12022.53, subds. (b) - (e), 422.75, subd. (a), 190.2, subd. (a)(3).)
Appellants raise numerous claims on appeal. We agree with appellants' claim of misjoinder and instructional error with respect to the conspiracy alleged in count three but find these and other alleged errors harmless. The People concede sentencing errors with respect to Ramirez and Salazar. As these concessions are well taken, we modify the judgment as to Ramirez and Salazar to correct the term imposed with respect to count one and to strike a parole revocation fine. In all other respects, the judgments are affirmed.
SUMMARY OF OFFENSES INVOLVED IN THIS APPEAL
Count one: Murder of Daniel Zamora committed by Ramirez, Salazar and Donald Sanchez.
On September 19, 2002, Daniel Zamora fought Edwin Moreno in front of Moreno's home. Zamora had been involved in previous disputes with the Moreno brothers and fought one of the younger Moreno brothers earlier that evening. Appellants Ramirez, Salazar and Donald Sanchez, along with Eduardo Cabello, heard the commotion from Ramirez's home and went into the street to investigate. Cabello testified Ramirez said they should beat Zamora and all four attacked him in the street.[2] Ramirez stayed behind after Cabello, Salazar and Donald Sanchez fled. When Ramirez rejoined the group he said, â€
