P. v. Kitlas
After a joint trial before separate juries, one jury acquitted Patrick Kitlas of first degree murder (count 1), but convicted him of second degree murder as a lesser included crime; residential robbery (count 2); and residential burglary during which the victim was present (count 3). (Pen. Code, 187, subd. (a), 189; 211, 212.5; 459, 460, subd. (a), 667.5, subd. (c)(21); all further section references are to the Penal Code.) The second jury acquitted codefendant Mark Itaev of counts 1 to 3 but convicted him of three counts of false personation (counts 4, 7, and 8), identity theft (count 5), and perjury (count 6). Only Itaev was charged in counts 4 to 8. ( 529; 530.5; 118, subd. (a).) Later, Itaev admitted that he committed the crimes charged in counts 4 8 while released on bail or on his own recognizance in another case. ( 12022.1.) The court sentenced Kitlas to a 6 year upper term for the count 3 burglary, a consecutive 15 years to life term for the count 1 second degree murder, and a concurrent term on the count 2 robbery. The court sentenced Itaev to an aggregate 6 year, 8 month term. Both defendants appealed, but Itaev voluntarily abandoned his appeal, which we dismissed.
Kitlas contends that the court erred in denying his (I) suppression motion ( 1538.5); (II) motion to quash the jury venire based on the prosecutors allegedly discriminatory use of peremptory challenges to exclude all African American jurors (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258); and (III) request to instruct the jury regarding heat of passion voluntary manslaughter as a lesser included crime of the count 1 murder. Court reject Kitlas contentions and affirm the judgment.
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