Fear Not Law Articles: P. v. Guevara

P. v. Guevara

Filed 1/18/07 P. v. Guevara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

ABACUC GUEVARA,

Defendant and Appellant.

E038475

(Super.Ct.No. RIF103546)

OPINION

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed in part, reversed in part and remanded with directions.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant, Abacuc Guevara (defendant), guilty as charged of two counts of murder committed on March 29, 2002, and both the proximate result of personally and intentionally discharging a firearm, and intentionally killing the victims, Carlos Cornejo (count 1) and Jose Vargas, Jr., (count 2), for the benefit of a criminal street gang (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 186.22, subd. (b), 190.2, subd. (a)(3) & (22)); one count of using a firearm to dissuade a witness, identified in the information only as April, from testifying or reporting a suspected crime, all for the benefit of a criminal street gang (Pen. Code, §§ 136.1, subd. (c)(1), 186.22, subd. (b), 12022.5, subd. (a)(1)) (count 3); one count of possessing methamphetamine for sale for the benefit of a criminal street gang (Health and Saf. Code, § 11378; Pen. Code, § 186.22, subd. (b)) (count 4); and two counts of possessing a firearm for the benefit of a criminal street gang and after having previously been convicted of violating Penal Code section 12020, subdivision (a) (Pen. Code, §§ 12021, subd. (a)(1), 186.22, subd. (b)) (counts 5 and 6). The jury further found true an allegation under Penal Code section 667.5, subdivision (b), that defendant had served a term in prison for his conviction in 2000 of illegally possessing a weapon in violation of Penal Code section 12020, subdivision (a).

Based on the jury's verdicts and true findings, the trial court sentenced defendant to prison for two consecutive terms of life without the possibility of parole on counts 1 and 2, the first degree murder convictions, with consecutive terms of 25 years to life on the firearms use and gang enhancements related to those counts.^{^[1]}

Defendant contends in this appeal that the trial court erred by admitting various evidence at trial, the details of which we recount below in our discussion of the pertinent claim, and committed various errors during sentencing. We agree with defendant's assertion that the trial court erred in finding that the prosecution had used due diligence in its effort to locate April Romero in order to subpoena her to appear and testify at trial, and therefore the trial court erred in admitting her preliminary hearing testimony. We further conclude that error was prejudicial and requires reversal of defendant's convictions on count 3, the charge that defendant dissuaded April from testifying as a witness, count 4, the charge that defendant possessed methamphetamine for sale, and on count 5, the charge that defendant unlawfully possessed a .38-caliber revolver. Therefore, we will reverse defendant's convictions on those three counts. We conclude defendant's other claims of error, the details of which we recount below, are meritless.

FACTS

On March 29, 2002, around 11:00 a.m., Carlos Cornejo and Jose Vargas, Jr., (Junior) were sitting on a wall outside the Lincoln Apartments in the Casa Blanca area of Riverside. Defendant walked up and began talking with them. The three apparently drank beer together before an argument broke out that ended when defendant shot Cornejo and Junior. After defendant shot him, Cornejo fell over and off the wall. Junior, however, tried to run away but defendant shot him again, this time in the back. Defendant then ran off to a car waiting nearby, described by one witness as a newer model black Honda with tinted windows and a sunroof. After defendant got into the passenger side, the car drove away. Regina A., then 10 years old, had been playing outside with a group of children and immediately after the shots were fired, yelled, â€

Description	A jury found defendant, guilty as charged of two counts of murder committed on March 29, 2002, and both the proximate result of personally and intentionally discharging a firearm, and intentionally killing the victims, Carlos Cornejo (count 1) and Jose Vargas, Jr., (count 2), for the benefit of a criminal street gang (Pen. Code, 187, subd. (a), 12022.53, subd. (d), 186.22, subd. (b), 190.2, subd. (a)(3), (22)); one count of using a firearm to dissuade a witness, identified in the information only as April, from testifying or reporting a suspected crime, all for the benefit of a criminal street gang (Pen. Code, 136.1, subd. (c)(1), 186.22, subd. (b), 12022.5, subd. (a)(1)) (count 3); one count of possessing methamphetamine for sale for the benefit of a criminal street gang (Health and Saf. Code, 11378; Pen. Code, 186.22, subd. (b)) (count 4); and two counts of possessing a firearm for the benefit of a criminal street gang and after having previously been convicted of violating Penal Code section 12020, subdivision (a) (Pen. Code, 12021, subd. (a)(1), 186.22, subd. (b)) (counts 5 and 6). The jury further found true an allegation under Penal Code section 667.5, subdivision (b), that defendant had served a term in prison for his conviction in 2000 of illegally possessing a weapon in violation of Penal Code section 12020, subdivision (a). Based on the jury's verdicts and true findings, the trial court sentenced defendant to prison for two consecutive terms of life without the possibility of parole on counts 1 and 2, the first degree murder convictions, with consecutive terms of 25 years to life on the firearms use and gang enhancements related to those counts. Defendant contends in this appeal that the trial court erred by admitting various evidence at trial, the details of which we recount below in our discussion of the pertinent claim, and committed various errors during sentencing. Court agree with defendant's assertion that the trial court erred in finding that the prosecution had used due diligence in its effort to locate April Romero in order to subpoena her to appear and testify at trial, and therefore the trial court erred in admitting her preliminary hearing testimony. Court further conclude that error was prejudicial and requires reversal of defendant's convictions on count 3, the charge that defendant dissuaded April from testifying as a witness, count 4, the charge that defendant possessed methamphetamine for sale, and on count 5, the charge that defendant unlawfully possessed a .38-caliber revolver. Therefore, Court reverse defendant's convictions on those three counts. Court conclude defendant's other claims of error, the details of which court recount below, are meritless.
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