P. v. Negrete

Filed 6/28/06 P. v. Negrete CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from judgments of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.

Richard A. Levy, under appointment of 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, Theresa A. Patterson, Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

On the night of February 5, 2003, Rolando Rojas (Rojas) was shot at close range in front of the El Dorado bar in Los Angeles, and he died of his wounds four days later. Moments after Rojas was shot, Belen Dercio and his brother Salvador (Dercio brothers) were shot at close range behind the El Dorado. Belen died at the scene and Salvador was seriously injured. Defendant Juan Pablo Negrete (defendant) and three co-defendants were charged with two counts of first degree murder (Pen. Code § 187, subd. (a))[1] and one count of attempted premeditated murder (§§ 664/187, subd. (a)). Defendant's case was severed from his co-defendants' cases for trial. The jury found defendant guilty on all counts, and it found the special-circumstances and firearms allegations to be true.

After trial, new counsel was appointed to handle the portion of defendant's motion for new trial that was based on the grounds of ineffective assistance of counsel. The trial court denied defendant's motion for new trial. On count one (the murder of Belen Dercio), defendant was sentenced to a term of life without parole, plus one year. On count two (the murder of Rojas), defendant was sentenced to a term of life without parole, plus 25 years to life. On count three (the attempted murder of Salvador Dercio), defendant was sentenced to a term of life without parole, plus one year. All terms were imposed consecutively.

Defendant appeals on the grounds that there was insufficient evidence to support his convictions on counts one and three; the trial court erred in denying his motion for new trial on the grounds of ineffective assistance of counsel; the prosecutor engaged in prejudicial misconduct as to counts one and three by expressing her personal opinion about the evidence; and the trial court committed jurisdictional error by imposing a consecutive 25 years to life term on count two, in addition to the base sentence of life without parole.

We hold that there was sufficient evidence to support the convictions on counts one and three; the trial court did not abuse its discretion when it denied defendant's motion for a new trial on the grounds of ineffective assistance of counsel; defendant is precluded from seeking review of his claim of prosecutorial misconduct due to his failure to object in the trial court, and there was no prejudicial misconduct in any event; and the trial court did not err in imposing a 25 years to life term on count two, in addition to the base term of life without parole. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Fight Involving Rojas and Severed Co-Defendants Sandoval and Romero

Severed co-defendants Aida Sandoval (Sandoval) and Yessenia Romero (Romero) worked at the El Dorado bar located on the corner of South Main Street and 42nd Place, south of downtown Los Angeles. The two women â€