P. v. Pineda

Filed 8/24/06 P. v. Pineda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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.

Raul Anthony Sahagun, Judge. Affirmed.

J. David Munoz for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Leonel Pineda was convicted by a jury of attempted murder (Pen. Code, §§ 664, 187 subd. (a); count 1) and shooting at an occupied motor vehicle (§ 246; count 2). Appellant filed a motion for new trial and mistrial, both of which were denied. For count 1, Pineda was sentenced to prison for a total of 27 years, consisting of 7 years for attempted murder, plus a sentence enhancement of 20 years for discharge of a firearm (Pen. Code § 12022.53, subd. (c)). Appellant was also sentenced to five years for count 2, which sentence was stayed pursuant to Penal Code section 654. Appellant contends that the trial court erroneously (1) denied the motion for new trial based on the contention that the verdict was contrary to the evidence, (2) admitted evidence that should have been deemed prejudicial, and (3) denied a motion for mistrial due to juror misconduct. We disagree and affirm.

FACTS

Julio Espinoza, his brother Anthony Espinoza,^[1] and Aaron Adams finished their work as temporary salesmen in Norwalk one evening in late January, 2004. They drove a vehicle to a street near their work, parked the car, and began taking inventory of their sales for that day. They also began to smoke marijuana.

As they talked, Anthony, seated in the passenger seat, saw an individual later identified as appellant approach the driver's side of the car and draw from his waistline a gun with his right hand. Anthony quickly alerted his brother, who was seated in the driver's seat, by saying in a loud voice that someone was outside with a gun. Julio looked out the driver's window and saw the individual pointing a .22-caliber gun at him. Adams, who was seated in the back seat, also looked up from his paperwork and saw the individual. Julio then locked the door, ducked, and tried to drive away, but the gunman fired and grazed the back of his head. Adams heard two shots, the second of which struck Julio. After a short while, Julio passed out, and his brother and Adams drove him back to the building where they worked and called for an ambulance.

Deputy Rene Garcia of the Los Angeles County Sheriff's Department responded to the scene, along with other emergency personnel. After some attempt to speak with the injured Julio, the deputy obtained a description of the suspect from Anthony. Anthony described the suspect as five-six to five-seven in height, between 160 and 175 pounds, with a goatee, between 18 to 22 years old. Sheriffs deputies conducted a field identification at the scene, presenting two suspects to Anthony, who did not identify anyone.

Detective Michael Caouette and another deputy visited Julio in his home at the beginning of February 2004. Detective Caouette presented to Julio several photographs, asking him if he recognized and could identify the individual who shot him. After the third or fourth photograph, Julio identified appellant as his assailant. He mentioned that appellant looked different only in that he did not have facial hair and was not wearing a beanie in the photograph, whereas at the time of the shooting he had some facial hair and was wearing a beanie. Detective Caouette also met with Anthony that day and presented to him the same photographs. Anthony likewise identified appellant as the individual who shot his brother. The next day, Caouette presented the photographs to Julio's friend, Aaron Adams, in Adams's home. As had his friends, Adams identified appellant as the shooter.

At that point, appellant became the prime suspect in the shooting. At the end of February, a search and arrest warrant was issued and served at appellant's Norwalk home. Officer Paul Merino, who was familiar with the neighborhood and had visited with appellant previously on many occasions, served the warrant, but failed to locate him at that time. Officer Merino continued to patrol the street five to seven times a week, as was his normal schedule, but he never saw appellant again until after his arrest. Appellant was arrested on July 22, 2004, in another area of the county.

DISCUSSION

In reviewing for a new trial motion for insufficiency of evidence, the appellate court â€