P. v. Raya

Filed 2/14/07  P. v. Raya 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from the Superior Court of Riverside County.  James A. Edwards, Judge.  (Retired Judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, §  6 of the Cal. Const.)  Affirmed in part, reversed in part, and remanded with directions.

            Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf and Barry J.T. Carlton, Supervising Deputy Attorneys General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

I.  INTRODUCTION

Based on two separate, gang-related incidents in March and April 2001, defendant was charged in a consolidated, amended information with the attempted robbery of Benigo Gutierrez (Pen. Code, §§  211, 664,^[1] count 1); assaulting Jose Cacho with a deadly weapon (§  245, subd. (a)(1), count 2); the willful, deliberate, and premeditated attempted murder of Alfonso Stollwarth (§§  187, subd. (a), 664, count 3); shooting at an inhabited dwelling (§  246, count 4); and two counts of actively participating in a criminal street gang (§  186.22, subd. (a), counts 5 & 6).  It was further alleged that defendant had one prior strike conviction (§  667, subds. (c) & (e)(1)); and committed counts 1 through 4 for the benefit of a criminal street gang (§  186.22, subd. (b)).  Firearm enhancements, within the meaning of section 12022.53, subdivisions (c) (personal discharge), (d) (personal discharge causing great bodily injury), and (e) (vicarious gang liability) were alleged in counts 3 and 4.  Defendant admitted the prior strike conviction, and a jury found him guilty as charged and found all enhancement allegations true.  Defendant was sentenced to an aggregate term of 110 years to life, plus six years four months in prison. 

Defendant appeals.  He contends the information did not put him on notice he was being charged with the premeditation enhancement on the attempted murder charge in count 3; insufficient evidence supports his attempted robbery conviction in count 1; the jury was erroneously instructed on the malice element of attempted murder in count 3; and the trial court erred in failing to instruct sua sponte on the lesser included offense of simple assault in count 2 and on battery as a lesser included offense in count 1.  We agree that the trial court erroneously failed to instruct on the lesser included offense of simple assault in count 2, and that the error was prejudicial.  We therefore reduce defendant's conviction in count 2 to simple assault, and remand the matter for resentencing.  We find defendant's other aforementioned claims without merit. 

Defendant also raises multiple claims of pleading, instructional, and sentencing error regarding the firearm and gang enhancements in counts 3 and 4.  We agree with three of defendant's claims of sentencing error.  Thus, we remand the matter for resentencing in light of these errors as well as the reduction of defendant's conviction to simple assault in count 2.  In all other respects, we affirm the judgment. 

II.  THE EVIDENCE PRESENTED AT TRIAL

A.  Prosecution Evidence

            The charges of attempted robbery upon Benigo Gutierrez (count 1) and assault with a deadly weapon upon Jose Cacho (count 2) stemmed from a March 11, 2001, incident.  The premeditated, attempted murder (count 3) and section 246 (count 4) charges stemmed from an April 22, 2001, incident involving victim Alfonso Stollwarth and witness Jesus Silva.  Both incidents occurred in Home Gardens, an unincorporated area near the City of Corona. 

1.  The March 11, 2001, Incident

            At approximately 2:30 a.m. on March 11, 2001, Jose Cacho was in his house on Byron Street in Home Gardens when he heard someone yelling outside.  He walked outside and saw defendant and Jorge Nuno confronting three of his neighbors, Benigo, Omar, and Oracio Gutierrez.^[2]  As he approached the group, he heard defendant, who spoke only English, asking the Gutierrez brothers, in English, for their money.  The Gutierrez brothers spoke Spanish.  One of the brothers told Cacho, who spoke English and Spanish, that defendant was trying to rob them of their money. 

Defendant told Cacho to tell the Gutierrez brothers, in Spanish, to give him their money.  When Cacho refused, defendant told Nuno to â€