P. v. Lua CA2/5

Filed 7/31/13 P. v. Lua CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B242445

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA082208) v.

JUAN LUA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed as modified. David M. Thompson, 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, James William Bilderback II and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Juan Lua, of two counts (counts 1 and 2) of attempted murder. (Pen. Code,1 §§ 664, 187, subd. (a).) The jury further found defendant personally and intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subds. (b), (c) & (d).) The jury found a gang enhancement allegation not true. (§ 186.22, subd. (b)(4).) The prosecution dismissed count 2 following a new trial grant. Defendant pleaded no contest to a new count 3, assault with a firearm. (§ 245, subd. (a)(2).) Defendant was sentenced to 34 years to life in state prison.

II. THE EVIDENCE

On March 14, 2010, defendant walked into a pizza restaurant in Inglewood and shot two employees—Pedro Lujano and Saeid Sedaghat. Mr. Lujano had grown up with defendant in the same neighborhood. They had been members of the same gang. Mr. Lujano repeatedly and consistently identified defendant as the gunman. There was no evidence of a robbery. There was some evidence defendant shot Mr. Lujano in retaliation for gang-related events. There was also evidence defendant had a personal vendetta against Mr. Lujano. The second victim, Mr. Sedaghat, was simply present and had nothing to do with the relationship between Mr. Lujano and defendant. Detective Kerry Tripp testified concerning defendant’s gang. In Detective Tripp’s opinion, the attempted murders were committed for the benefit of a criminal street gang. As noted above, however, the jury found that allegation not true.