People v. Pacheco CA3

Filed 10/3/24 P. v. Pacheco CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098192

Plaintiff and Respondent, (Super. Ct. No. 20FE015862)

v.

EMMANUEL PACHECO,

Defendant and Appellant.

Shortly after a jury began deliberating on two gun-related charges against defendant Emmanuel Pacheco, the trial court substituted an alternate juror to replace a juror who had a family emergency. The jury ultimately found Pacheco guilty on both counts. On appeal, Pacheco argues that the trial court erred because it did not instruct the jury to set aside its prior deliberations and begin deliberating anew when the alternate juror was empaneled. Pacheco also notes an error in the abstract of judgment. The People concede both errors but argue that reversal is unwarranted because the instructional error was not prejudicial. We conclude that the instructional error was harmless, affirm the judgment, and direct that a corrected abstract of judgment be issued.

1

BACKGROUND I. Following an argument between two groups of people near a liquor store, a gunman opened fire, striking the victim and leaving her paralyzed. The People charged Pacheco with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count one) and possession of a firearm by a prohibited person (§ 29820; count two).1 The prosecution also alleged that he had a prior strike conviction. (§§ 667, subds. (b)–(i), 1170.12.) Witnesses identified the source of the gunfire as the group of which Pacheco was a member. The group was near a van, across the liquor store parking lot from the victim. The primary issue at trial was whether Pacheco or someone else in his group was the shooter. Pacheco argued that either Thomas Epps or Sergio Morales had fired the shots. B.O., the van’s driver, testified for the prosecution under a grant of immunity. There were six other people in the van, including Pacheco, Epps, and Morales. As the group was leaving the liquor store, one of the passengers realized she had lost her phone. B.O. parked in the parking lot in front of a gym. After the three men got out of the van, she heard a noise and turned to see Pacheco shooting a gun. She saw him pulling the trigger and heard gunshots but did not see muzzle flashes. He was shooting toward the liquor store. Epps and Morales were not standing with Pacheco, and Pacheco was the only person she saw firing or holding a gun. After the shooting, the group got back in the van, and B.O. drove away. At some point, a police car drove up behind them. Pacheco told B.O. not to pull over, but she did anyway. Pacheco and Epps exited the van and fled. Both were detained by police shortly thereafter.