P. v. Lucero

Filed 6/8/06 P. v. Lucero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed with directions.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Jason Lee Lucero.

Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant Paul Peter Aguilar.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendants and appellants, Jason Lee Lucero and Paul Peter Aguilar, and a third defendant, Louis Robert Martinez, were charged in the same information and tried before the same jury for the crimes of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1);^[1] count 1); the willful, deliberate, and premeditated attempted murder of Daniel Pehrson (§§ 187, subd. (a) & 664, subd (a); count 2); residential burglary (§ 459; count 3); two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5); and active participation in a criminal street gang (§ 186.22, subd. (a); count 6). Lucero was also charged with being a felon in possession of a firearm. (§ 12021, subd. (a)(1); count 7.)

The information further alleged that defendants intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1), in counts 1 and 2, and committed counts 1, 2, and 3 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) It was also alleged that Lucero intentionally discharged a firearm in count 3 (§ 12022.53, subds. (c) & (e)(1)); personally used a firearm in counts 3, 4, 5, and 6 (§ 12022.5, subd. (a)); had one prior strike conviction (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)); one prior serious felony conviction (§ 667, subd. (a)); and two prison priors (§ 667.5. subd. (b)). Aguilar allegedly had one prior strike conviction. (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1).)

The jury was unable to reach a verdict on the conspiracy to commit murder charge in count 1 as to any of the defendants, and a mistrial was declared on that count. The jury found all three defendants guilty as charged on the other counts and found the firearm and gang allegations true. The trial court found the prior strike, prior serious felony, and prison prior allegations true as to Aguilar and Lucero. Lucero was sentenced to 67 years to life; Aguilar to 50 years to life; and Martinez to 35 years to life.

Martinez filed a separate appeal in case number E036407 and is not a party to this appeal. Lucero and Aguilar are parties to this appeal and join each other's contentions. They raise various claims of instructional, evidentiary, and sentencing error. We agree, as do the People, that Lucero's 10-year gang enhancement imposed on count 2 must be stricken. In all other respects, we affirm the judgment against Lucero. We agree with Aguilar that his 15-year minimum parole eligibility date (MPED) in count 2 was erroneously imposed. We therefore remand the matter with directions to modify the judgment against Aguilar to impose a seven-year MPED under section 3046, subdivision (a)(1). In all other respects, we affirm the judgment against Aguilar.

FACTUAL BACKGROUND

A. Prosecution Evidence

1. Background

In 2003, Lucero, Aguilar, and Martinez were active members of the Mira Loma Dodd Street (MLDS) gang, a criminal street gang. Lucero was known as â€