People v. Albarran CA5

Filed 11/6/13 P. v. Albarran CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F065855 Plaintiff and Respondent, (Super. Ct. No. BF137702E) v.

CRISTIAN ALBARRAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Franson, J., and Peña, J.

INTRODUCTION On August 9, 2011, appellant, Cristian Albarran, and four codefendants were charged in a second amended indictment with first degree murder (Pen. Code, § 187, subd. (a), count one),1 second degree robbery (§ 212.5, subd. (c), count two), shooting at an occupied vehicle (§ 246, count three), and participation in a criminal street gang (§ 186.22, subd. (a), count four).2 The second amended indictment included special allegations as to count one that appellant committed his offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), acted as a principal in the commission of murder and at least one other principal intentionally and personally discharged a firearm proximately causing great bodily injury or death of the victim (§ 12022.53, subds. (d) & (e)(1)), was a principal in the commission of murder and committed the special circumstance of being an active participant in a criminal street gang (§ 190.2, subd. (a)(22)), and participated in the special circumstance of robbery while committing murder (§ 190.2, subd. (a)(17)(A)). Counts two and three included the same special gun and gang allegations as were alleged in count one, but not the special circumstance allegations. A jury trial began for appellant and all of the codefendants on May 16, 2012. On the second day of trial, appellant entered into a plea agreement whereby he would admit count two, second degree robbery, the gang enhancement and a gun enhancement pursuant to section 12022.53, subdivisions (c) and (e)(1). Under the terms of the plea agreement, appellant would receive a stipulated sentence of 5 years on count two and a