P. v. Gonzalez

Filed 6/27/06 P. v. Gonzalez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Reversed and remanded with directions.

Randy S. Kravis for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

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Jaime Gonzalez (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of first degree murder with true findings of the intentional and personal discharge of a firearm proximately causing injury or death (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b) & (d))[1] and of the commission of murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).[2] The trial court sentenced defendant to 25 years to life in state prison for the murder, enhanced by a term of 25 years to life for the discharge of a firearm, plus a determinate term of 10 years for the gang enhancement.

Defendant contends that (1) the trial court abused its discretion and denied him due process because it denied his motion to continue sentencing so that defense counsel could research and further investigate juror misconduct, as well as file a written motion for a new trial, and (2) the 10-year determinate term imposed for the gang allegation is unauthorized, and the judgment must be modified to strike the 10-year enhancement and in lieu thereof, impose a minimum term of parole eligibility of 15 years.

As to the continuance, we find that the continuance was not compelled. However, the trial court did exercise its discretion based upon a misunderstanding of the relevant authorities. Consequently, we will reverse the judgment, and the cause will be remanded with directions for the trial court to exercise its discretion under proper criteria. With regard to the unauthorized term of punishment, we agree that the decision in People v. Lopez (2005) 34 Cal.4th 1002 supports his contention. On remand, the trial court will also be required to make the corrections required by Lopez.

THE FACTS

I. The Trial Evidence

Defendant does not contend that the evidence is insufficient to support the judgment. Accordingly, we state the trial evidence briefly.

At about 8:40 p.m. on February 17, 1999, Angel Ramirez and defendant, Eastlake gang members, drove to Shirley Perry's residence, which was located in the Lincoln Park area of Los Angeles. There, defendant got out of Ramirez's Honda and took up a position behind a fence opposite the residence's laundry room. With a semiautomatic nine-millimeter pistol, he shot Perry's 17-year-old son, Danny Valenzuela, who was talking on the telephone in the residence's laundry room. Valenzuela died as a result of the gunshot wound. Valenzuela was a Clover gang member. There was an intense rivalry between the Eastlake and Clover gangs that suggested the shooting was gang motivated.

Perry saw defendant commit the shooting and identified defendant in court as her son's assailant. Other circumstantial evidence corroborated defendant's identity as the gunman.

II. The Proceedings on the Motion for New Trial

On Monday, February 14, 2005, the jury returned its guilty verdict. Sentencing was scheduled for March 15, 2005. On that date, as part of an oral motion for a new trial, defense counsel presented the trial court with his investigator's â€