P. v. Barocio

Filed 4/6/06 P. v. Barocio CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury found defendant Miguel Angel Barocio guilty of attempted murder, aggravated mayhem, unlawful taking or driving of a vehicle, robbery, and street terrorism, and found true various sentence enhancements, arising out of defendant's shooting of Duane Winters, which left Winters with no feeling in his right leg and no control of his bladder or his bowels. The trial court sentenced defendant to an unstayed term of 30 years to life in prison, plus a consecutive term of life in prison.

On appeal, defendant contends the evidence was insufficient to support his convictions of aggravated mayhem and unlawful taking or driving of a vehicle. He also contends the trial court: (1) violated his Fifth and Sixth Amendment rights by admitting hearsay statements through a gang expert's testimony; (2) erred in not instructing the jury on the natural and probable consequences doctrine and liability as an accessory; (3) erred in instructing the jury with CALJIC No. 2.03; (4) erred in imposing and staying two great bodily injury enhancements; and (5) erred in calculating his custody credits. Finally, to the extent he forfeited some of these arguments by failing to raise them in the trial court, defendant contends he received ineffective assistance of counsel.

We reject most of defendant's arguments, but conclude that the trial court did err in imposing, then staying, two great bodily injury enhancements under Penal Code^[1] section 12022.7, subdivision (a) and in calculating defendant's custody credits. Accordingly, we will modify the judgment to correct these errors and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

One morning in December 2003, Winters returned in his pickup truck to his property on South Austin Road in Ripon. There he encountered two men pumping gas from a gas tank on the property into their own pickup truck. A confrontation ensued, and one of the men, whom Winters identified at trial as defendant, shot Winters three times in the back and once in the shoulder. One of the men drove off in the pickup truck they came in, and the other drove off in Winters's truck.

In April 2004, defendant was charged with attempted murder, aggravated mayhem, carjacking, robbery, unlawful taking or driving of a vehicle, and street terrorism, along with various sentence enhancements.^[2] Because unlawful taking or driving of a vehicle is a lesser included offense of carjacking, the prosecution dismissed the unlawful taking or driving charge before trial.

Following a trial in February 2005, the jury acquitted defendant of carjacking, but found him guilty of all the other charges and of the lesser included offense of unlawful taking or driving of a vehicle. As noted above, the trial court sentenced defendant to two unstayed life sentences.^[3] Defendant filed a timely notice of appeal.

DISCUSSION

I

Sufficiency Of The Evidence

A

Aggravated Mayhem

The jury found defendant guilty of aggravated mayhem. Defendant contends the evidence was insufficient to support this conviction because the evidence did not support a finding that he shot Winters with the requisite intent. We disagree.

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