P. v. Deniz

Filed 6/12/06 P. v. Deniz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. David M. Mintz, Judge. Affirmed.

Lynda A. Romero, 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, Assistant Attorney General, Steven E. Mercer and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Miguel Gomez Deniz challenges his first degree murder conviction on the grounds the trial court committed evidentiary error and violated his confrontation rights by admitting a hearsay statement by his brother, and erred by failing to instruct the jury that statements made by an accomplice should be viewed with caution. We conclude admission of a statement by appellant's brother was neither evidentiary nor constitutional error. Moreover, any error in failing to give accomplice instructions was harmless.

BACKGROUND AND PROCEDURAL HISTORY

On May 23, 1981, two adult men confronted three or four teenage boys outside a neighborhood store. One of the men drew a gun and began firing. Three shots struck 14-year-old Dewayne Spears, who died. Three of Spears's companions identified appellant as the shooter. Although a warrant for appellant's arrest issued in 1981, he was not arrested until 2004, when he was found in Arizona.

A jury convicted appellant of first degree murder and found he had personally used a gun in the commission of the offense. The jury acquitted appellant of assault with a deadly weapon, which named one of Spears's friends as victim. Appellant was sentenced to prison for 27 years to life.

DISCUSSION

1. Admission of a statement by appellant's brother was not error and did not violate appellant's confrontation right.

Augustin Toro made a statement to the police in 1981. A detective wrote down the statement and Toro signed it. In that statement, Toro apparently told the police that during a baby shower held at his home in late May of 1981, appellant showed him a gun and said he had used the gun to shoot â€