People v. Escobar CA2/5

Filed 1/23/25 P. v. Escobar CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B334101

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA097063-01) v.

ALAN ESCOBAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, David Walgreen, Judge. Judgment Affirmed; Sentence vacated and remanded. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Sophia A. Lecky, Deputy Attorneys General for Plaintiff and Respondent.

The jury found Alan Escobar guilty of assault with a semiautomatic firearm (Pen. Code,1 § 245, subd. (b); count 1) and carrying a loaded handgun on his person or in a vehicle (§ 25850, subd. (a); count 3). The jury acquitted Escobar of attempted murder. (§§ 664/187, subd. (a); count 2.) As to count 1, the jury found true the allegation that Escobar personally used a firearm in the commission of the offense in violation of section 12022.5, subdivision (a). As to counts 1 and 3, the jury found true the allegation that Escobar attempted to flee from the crime scene and to conceal and/or destroy evidence of the crime, within the meaning of Rules of Court, rule 4.421, subdivision (c). The jury found not true as to counts 1 and 3 the allegation that the victim of the above offenses was particularly vulnerable within the meaning of Rules of Court, rule 4.421, subdivision (a)(3). On appeal, Escobar contends that (1) the matter must be remanded for resentencing because the trial court relied on improper aggravating factors to impose the 10-year high term on the firearm enhancement, and (2) that the trial court violated his federal and state constitutional rights by improperly instructing the jury regarding the mental state required for the assault in count 1. We vacate the sentence and remand the matter to the trial court for re-sentencing. We affirm the judgment in all other respects.