P. v. Flores

Filed 7/11/06 P. v. Flores 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Richard R. Romero, Judge. Affirmed.

Matthew G. Kaestner for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Adrian Flores of one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2))[1] (count 1) and one count of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 2). The jury found true the allegation that appellant personally used a firearm in the commission of count 1. (§ 12022.5.)

The trial court sentenced appellant to state prison for a total of 15 years. The court imposed the upper term of four years on count 1 and the upper term of 10 years for the personal use enhancement. The court imposed one year (one-third the midterm of three years) in count 2.

Appellant appeals on the grounds that: (1) Because the court erred under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the upper term sentence must be reversed and remanded for a jury trial regarding the facts purportedly justifying the sentence; (2) appellant did not forfeit his claim of Blakely error by failing to object on that ground at the time of sentencing; and (3) the improper argument of the prosecutor warrants reversal.

FACTS

Edward Rivera (Rivera) was the father of Rachel, who was 19 years old at the time of trial. He was her primary caregiver until she turned 18. On February 24, 2005, Lorraine Sanchez (Sanchez), a vice-president at a bank where Rachel worked, joined Rivera at his son's basketball practice. Sanchez told Rivera that, not for the first time, Rachel had missed work and had not called in. Sanchez wanted to find Rachel to give her a last chance to keep her job. Sanchez asked Rivera to accompany her to the home of Rachel's boyfriend, who was appellant. Rivera agreed to go with her, although he was reluctant because of appellant's history.

When they arrived at appellant's house, Sanchez approached the door while Rivera waited across the street in the car. There were two persons standing at the front gate, and they appeared to become nervous at Sanchez's approach. When Sanchez was admitted to the house, the two persons got in their car and left.

Appellant's brother, Alex, let Sanchez into the house. When Sanchez asked for Rachel, appellant said she was not there. Appellant stormed out of the house and appeared to be angry. Sanchez saw Rachel approaching from another room.

Rivera saw appellant come out of the house, and he believed appellant was looking for the two people who had been waiting outside. As appellant walked toward the corner, Rivera got out of the car and approached him. Appellant turned and appeared shocked to see Rivera. Rivera asked appellant if he was upset because Rivera had messed up appellant's drug deal. Rivera then asked where Rachel was.

Appellant seemed very scared, and he reached for his waist. Rivera saw the grip of a gun in appellant's waistband. Appellant pointed the gun at Rivera. As appellant tried to pull the trigger, Rivera grabbed the barrel of the gun and pushed it away. The two men began to wrestle for the gun, and appellant said he was going to shoot Rivera. They slipped and fell to the ground as the gun discharged. Appellant's finger was on the trigger. During the scuffle, an object fell out of appellant's pockets.

Sanchez came outside upon hearing a commotion and saw the struggle. Rivera yelled to her to get out of the way because appellant had a gun and was going to shoot somebody. Appellant began chewing on Rivera's hand to gain control of the gun. Rivera was in fear for his life and was hitting appellant to get the gun away from appellant.

Rachel and appellant's parents came out of the house and began kicking and hitting Rivera and pulling his hair. Appellant yelled at Rivera that he was going to kill him and that he should have killed him. Appellant's parents got hold of the gun, and Rivera released it to them. Appellant's parents took appellant and the gun into the house.

The police were called, and they used bullhorns to order appellant out of the house with his hands up. Appellant's parents, brother, and sister left the house. A SWAT team shot different types of tear gas into the house. When police entered, they found no one.

Police recovered the items that had fallen from appellant's pockets, which included a green container, a baggie containing residue, and a small baggie containing a substance that appeared to be methamphetamine. Subsequent analysis showed that one baggie contained .23 grams of methamphetamine. According to expert testimony, this was a usable quantity. Police also searched appellant's house and found a large quantity of ammunition for handguns and a large gun safe in his room.

Several days after the shooting, police located Rachel and followed her to a mobile home park in Carson where she met appellant. Appellant was arrested.

I. Defense Evidence

Officer Guillermo Arias of the Long Beach Police Department testified at appellant's trial that Rivera told him on the night of the assault that appellant had been outside and that appellant had approached Rivera in an aggressive manner. Rivera told Officer Arias that he lunged at appellant to prevent him from reaching the gun in his waistband. Appellant looked surprised when the gun went off.

Appellant's brother Alex thought Rivera was beating up appellant. Rivera was on top of appellant, and appellant was screaming for help. Rivera had gone approximately five times to the Flores home late at night. He would ring the doorbell and yell things to appellant. Alex acknowledged that Rachel was 17 years old when she started living at the Flores home. Rivera did not want Rachel to live there and tried to get his daughter to come home. Sometimes appellant's parents had called Rivera and told him to come and take Rachel home.

Rachel's mother, Dawn McKinley, testified that Rivera had slapped her and used abusive language to her during their relationship. She acknowledged that she was angry because she had to pay Rivera child support, and she was engaged in a custody battle with him. She stated that she was a member of the Neighborhood Watch in the neighborhood where appellant lived, and the neighbors were afraid of appellant.

Appellant testified that he was getting out of the shower when someone called to him from outside. When appellant went outside, Rivera yelled at him and stormed towards him. Rivera had previously threatened both appellant and his father and had acted very violent at odd hours of the night. On the night of the incident, Rivera hit appellant on the head when appellant tried to walk away. Then Rivera hit appellant with his fists many times and began to choke appellant. Appellant saw a gun in Rivera's waistband and grabbed it. The gun went off during the struggle. Appellant barely had his hands on the bottom of the grip when the gun went off. Rivera kept saying he was going to kill appellant. Appellant bit Rivera's hand because he was in fear for his life. Appellant left the house and the area because he feared for his life.

Appellant acknowledged that he had stolen a rare rifle piece from a gun show. He said that he did not know the combination for the gun safe in his bedroom. He admitted that police found methamphetamine paraphernalia in his bedroom on the night of the assault, but he denied that the methamphetamine found outside the house was his. Appellant conceded that police had found two knives on him when he was stopped in February 2004. Appellant said that the 142 rounds of ammunition found in his dresser must have been left by an uncle who had since died, and appellant did not know they were in the dresser.

Appellant admitted that police found 36 guns in the gun safe in his room on July 24, 2003. On that date his uncle and grandfather were in appellant's room when he entered. They started yelling at him. His grandfather tried to choke him, and his uncle hit him in the head with a flashlight. Appellant fell, and his uncle pinned down appellant's legs and continued to beat him.

II. Rebuttal Evidence

Xavier Martinez (Martinez), appellant's maternal uncle, testified that on July 24, 2003, he went to appellant's home after being told that appellant had hit his mother. He found appellant fighting with his 72-year-old grandfather. When Martinez tried to pull appellant away from his grandfather, appellant drew a knife and tried to stab Martinez. Martinez hit appellant to make him drop the knife. When he was unsuccessful, Martinez grabbed a flashlight and hit appellant with it. Appellant finally dropped the knife. A police officer went to appellant's home that night. He saw a knife sheath on appellant's waistband and found the knife in appellant's room. The officer saw numerous weapons in a gun safe in appellant's room.

On the night of the shooting, appellant's sister Lauren heard Rivera yell, â€