P. v. Flores CA2/3

Filed 7/18/13 P. v. Flores CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B243923

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA385567) v.

CARLOS ENRIQUE FLORES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Modified and, as so modified, affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Carlos Enrique Flores appeals his convictions for second degree robbery, attempted second degree robbery, misdemeanor vandalism, receiving stolen property, and auto burglary. The trial court sentenced Flores to a term of four years eight months in prison. Flores contends (1) the trial court prejudicially erred by giving the standard jury instruction regarding flight after a crime; and (2) he should have been sentenced to a jail term, not a prison term, for the misdemeanor vandalism offense. Flores’s second contention has merit, and we order his sentence modified accordingly. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts. On June 9, 2011, Flores and three accomplices went on an early morning crime spree. The evidence relevant to the issues presented on appeal established the following. a. Vandalism and burglary in the parking structure. On June 9, 2011, at approximately 3:38 a.m., Flores drove Alex Iraheta, Luis Mesa (known as “Beso”) and Josue B. (known as “Framer”) in a black Lexus to the top level of a parking structure located near Kenmore Avenue and Sixth Street in Los Angeles. The group spray painted graffiti on the parking structure walls and on vehicles. They also shattered the windows of at least seven vehicles and took property from at least three of them, including, among other things, a navigation system, and two pellet guns along with a magazine and ammunition. b. Attempted robbery of Nelson C. Shortly before 7:00 o’clock that morning, Flores was driving his cohorts through Los Angeles when Iraheta and Framer suggested that they rob someone. Fifteen-year-old Nelson C. was walking to school near the intersection of Washington Boulevard and Magnolia Avenue, wearing headphones and listening to his iPod. Flores stopped the car near Nelson, and Iraheta and Framer exited the car and approached him. Flores made a U-turn and moved the car near Iraheta and Framer. Iraheta told Nelson to empty his pockets. Iraheta activated a taser he was holding, causing it to buzz and emit electrical current. Nelson ran and screamed for help. Iraheta and Framer chased him. They