P. v. Zapien

Filed 2/14/06 P. v. Zapien CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

a

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part.

Jeffrey J. Stuetz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Alex Zapien of first degree murder with special circumstances, street terrorism, plus several firearm and drug possession charges. It also returned true findings on allegations he personally discharged a firearm in committing the murder and perpetrated several of the charged crimes for the benefit of a criminal street gang. The trial court sentenced Zapien to life in prison without parole for the murder with special circumstances, added a consecutive 25 years-to-life term for the murder count's related firearm enhancement, and directed that he serve this sentence consecutive to a determinate prison term of 7 years and 4 months for the remaining charges. Zapien challenges the trial court's instruction on the use of accomplice testimony, admission of statements from a witness allegedly subjected to coercive interrogation by the police, and discharge of a juror who suffered a back injury during trial. We find each of these claims without merit.

In his reply brief, Zapien belatedly attempted to join in several arguments asserted by codefendant Jose Alfredo Amaya in a companion appeal. Nonetheless, since we have concluded in a separate opinion (People v. Amaya (Jan. 26, 2006, G033029) [nonpub. opn.]) that Amaya's appellate claims lack merit, permitting Zapien to raise the same issues would not benefit him.

However, our review of the appellate record reflects the trial court erred in sentencing Zapien on the determinate sentencing charges. Consequently, we affirm Zapien's conviction and the sentence imposed on the murder count. But we reverse the determinate sentence and remand the matter to the superior court for further proceedings.

FACTS

Bobby Sayamontry, a Laos Boys gang member, was an acquaintance of Patti Temprasuet. At the time, Temprasuet was the girlfriend of Javier Garcia, an imprisoned 18th Street gang member who used the nickname â€