People v. Ojeda CA3

Filed 1/30/14 P. v. Ojeda CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C071243

v. (Super. Ct. No. 08F04262)

CARLOS OJEDA,

Defendant and Appellant.

A jury convicted defendant Carlos Ojeda of second degree murder (Pen. Code, § 187, subd. (a))1 and found that he used a firearm in the commission of the offense (§ 12022.53, subds. (b), (c) & (d)). The trial court sentenced defendant to 40 years to life in prison.

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends (1) the trial court erred in instructing the jury with CALCRIM No. 372 [defendant’s flight], because defendant did not hide, but merely left the scene of the shooting and went home; (2) the trial court failed in its sua sponte duty to instruct the jury with CALCRIM No. 358 [evidence of defendant’s statements]; and (3) defendant is entitled to an additional day of presentence custody credit. Defendant’s contentions lack merit. We will affirm the judgment. BACKGROUND Defendant’s brother was murdered in Dixon in 2005. At the time, defendant was living in Sacramento with Manuel Lopez and Manuel’s wife, Mayra Martinez.2 Defendant and Manuel returned the brother’s body to Mexico. When defendant returned to California he started acting strangely. Defendant laughed inappropriately and distrusted everyone, saying that everybody wanted to kill them, that the food might be poisoned and that his mother in Mexico hired someone to kill him. Defendant shared a room at Manuel’s home with Javier Cerna. In May 2008, Javier drove defendant to the store. Surveillance cameras from a deli and an adjacent laundromat showed Javier’s car pulling into the parking lot at 8:47 p.m., Javier entering the deli and purchasing what appeared to be a beverage, and then driving away from the deli at 8:51 p.m. About 10 minutes after Javier and defendant left Manuel’s home, Manuel and another man, Felipe Garcia, heard gunshots and then a car crash. Manuel and Felipe walked to the scene of the crash. They saw that Javier’s car had run into a parked car, and that Javier was in the driver’s seat, bleeding. According to Felipe, defendant had just exited the car, carrying a paper bag. Defendant ran by Felipe and Manuel and said