P. v. Perez

Filed 6/30/06 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed.

Chris R. Redburn, 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, Lance E. Winters and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

Sandro Sylvestre Perez appeals from a judgment entered after a jury convicted him of murder, robbery, carjacking, kidnapping for carjacking, and arson. On appeal, he contends that the trial court erred in discharging a juror during deliberations, and by misinstructing the jury. We reject appellant's claims and affirm the judgment.

procedural background

Appellant was charged by information filed by the District Attorney of Los Angeles County with two counts of murder (Pen. Code, § 187, subd. (a),[1] counts 1 & 2), one count of robbery (§ 211, count 3), one count of carjacking (§ 215, subd. (a), count 4), two counts of kidnapping for carjacking (§ 209.5, subd. (a), counts 5 & 6), and one count of arson (§ 451, subd. (d), count 7). As to counts 1 and 2, the information also alleged the special circumstance that appellant was engaged in the commission of a kidnapping and a robbery. (§ 190.2, subd. (a)(17).) As to count 2, the information further alleged the special circumstance of multiple murder. (§ 190.2, subd. (a)(3).) Appellant pleaded not guilty to each count and denied the special circumstance allegations. The prosecution determined prior to trial that it would not seek the death penalty.

Trial was by jury. After deliberations began, the foreperson informed the trial court that the jury needed further instruction and, later, that difficulties had arisen with one of the jurors. Eventually the trial court dismissed that juror, replaced him with an alternate, and deliberations continued. Appellant objected to the dismissal and to the court's answers to questions posed by the jury.

The jury found appellant guilty as charged, found counts 1 and 2 to be murder of the first degree, and found true all of the special circumstance allegations.

The court sentenced appellant to state prison for two terms of life without the possibility of parole, plus a consecutive term of five years for carjacking and one-third the mid-term, or 8 months, for arson. The court imposed and stayed sentences on counts 3, 5, and 6. (§ 654.) The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and awarded 734 days of presentence custody credit.

This appeal followed.

factual background

1. The Prosecution's Case

Sometime in 1997, Luis Rodriguez, Hilario Sierra, and Maria Nunez participated in a home invasion robbery at a residence near Stockton and Long Beach Boulevards in Compton. They believed that the home, which was the rear house on a two-house lot, contained large sums of money and drugs. Sierra and Rodriguez, along with an unidentified third person, forced their way into the house, tied up a man and a woman inside the home, and stole approximately $30,000 in cash. The participants, including Nunez, split the money. Appellant was not involved in this incident.

On February 2, 1998, Sierra, Nunez, and Rodriguez, along with appellant, Jose Morales, and Jose Arce, decided to rob the house again. They drove together in a blue van to the area, and parked down the street to observe the house.

Guadalupe Gurrola lived in the front house on the lot, along with his wife and their three children. As the occupants of the blue van watched, Gurrola and his 14-year-old son, Andres, were working on a red van. As they continued to watch, they saw Gurrola get into the red van and drive away. Appellant and the others decided to follow the red van. They abandoned their plan to rob the rear house and decided instead to stop the red van and take the driver's money. When the red van stopped, Sierra and Rodriguez ran to it and ordered Gurrola, at gunpoint, to get into the back of the van. When they realized Andres was also in the van, they ordered him to get into the back of the van as well. Sierra told appellant to get out of the other van and drive the red van. Rodriguez said they should go to an area in Carson where they could search the van. According to Rodriguez, appellant did not want to be there. As appellant drove, Rodriguez and Sierra demanded money from Gurrola; Sierra threatened to hurt Gurrola if he did not give them some money. Nunez, Arce, and Morales followed in the other van. At one point, Sierra made appellant stop so Morales could get into the red van. Morales sat in the back, near Andres.

Sierra angrily demanded money from Gurrola, while Rodriguez and Morales searched the van. Andres was crying and told Gurrola to give them â€