P. v. Maes

Filed 5/11/06 P. v. Maes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

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Defendant Manuel Jose Maes brutally beat a neighbor with a baseball bat and killed him. A jury acquitted defendant of first degree murder, but convicted him of second degree murder (Pen. Code, § 187; unspecified statutory references that follow are to the Penal Code) and found that defendant used a deadly weapon in the commission of that offense (§ 12022, subd. (b)(1)).

Sentenced to an aggregate term of 16 years to life, defendant appeals. He contends the trial court erred in (1) admitting the statement of an eyewitness, (2) permitting the prosecution to reopen its case to introduce evidence, and (3) instructing the jury. He also asserts the prosecutor engaged in misconduct, and that the cumulative effect of multiple errors compels reversal. Finally, he contends he is entitled to credit for time served. Only this last contention has merit.

Facts and Proceedings

Defendant lived with his extended family, including his mother, siblings, girlfriend, and child. On March 29, 2002, the family spent the day moving from one house to another around the block. The victim, a neighbor named John Sullivan, helped defendant move a washing machine.

The new house featured a converted garage, which was used as the bedroom for defendant's brother, Gabe. Late in the afternoon, a group of friends gathered in Gabe's new room to play video games, listen to music, drink, and smoke marijuana. Defendant and his girlfriend, Angela, argued loudly in the yard because Angela wanted to join the group and defendant thought it was inappropriate.

While defendant and Angela were arguing, the victim came over and tried to apologize to defendant for something he had done. (What that something was was never established.) Defendant angrily told him that he was interrupting, so the victim went into Gabe's room to get a beer. The victim then went back outside and again tried to approach defendant, telling him that he was sorry. Defendant did not want to hear the victim's apology and told the victim to leave. As the victim kept trying to apologize, defendant became increasingly angry, and he told the victim to â€