P. v. Valdez

Filed 5/23/06 P. v. Valdez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert M. Martinez, Judge. Affirmed.

John Steinberg, 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, Susan Sullivan Pithey and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial preceded by two mistrials, appellant Feliberto Acosta Valdez was convicted of second degree murder, with a deadly weapon allegation found true.[1] The allegation of a prior conviction and a prison term was bifurcated, admitted by appellant, and found true by the court. Appellant was sentenced to 17 years to life in prison, 15 years for the murder and one year each for using a dangerous and deadly weapon and the prior. Appellant filed a motion for new trial, which was denied, based on the same issues raised on appeal.

Appellant's contentions are that the jury was effectively precluded from considering the lesser included offense of voluntary manslaughter and that prosecutorial misconduct during closing argument was prejudicially erroneous. Concluding the jury was properly instructed and there was no prejudicial prosecutorial misconduct, we shall affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

Prosecution's case in chief

In the late afternoon of May 19, 2003, 22-year old Eric Stick was stabbed to death by appellant. The information charged appellant with the murder of Eric Stick. The circumstances preceding the stabbing led to two mistrials before the jury in the case at bench found appellant guilty of second degree murder. Those circumstances are in large part undisputed.

Appellant had his hand inside the window of a yellow 2000 Volkswagen parked outside the Stick home and belonging to Laura Stick, the victim's mother.[2] The victim's girlfriend thought appellant was trying to break into the car and yelled at appellant, saying something like â€