People v. Recio CA2/4

California Court of Appeal Feb 19, 2014 No. B247010Unpublished

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Holding. The court held that the defendant forfeited his claim regarding juror bias by failing to object at trial and that the trial court did not violate the Sixth Amendment under Alleyne v. United States by denying a motion to strike a prior strike conviction.

Issues

Whether the trial court erred in failing to excuse a juror who recognized prosecution witnesses.
Whether the trial court engaged in improper judicial fact-finding under Alleyne v. United States when denying a motion to strike a prior strike conviction.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The record shows that defense counsel did not move to excuse the juror from the case or object to her continuing to serve. Therefore, the claim that the court should have excused her is forfeited.”

“Defendant’s argument that the trial court violated Alleyne relies on the mistaken premise that denying a motion to strike a strike conviction is somehow the equivalent of increasing the mandatory minimum sentence for the current crime.”

Filed 2/19/14 P. v. Recio CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B247010

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA099339) v.

JULIO RECIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed. James Bisnow 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, Chung L. Mar and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Julio Recio of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).1 He admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)). He was sentenced to 13 years in state prison and appeals from the judgment. We affirm.

BACKGROUND Prosecution Evidence In August 2011, Baldwin Park Police Officer William Zendejas provided backup to another officer, Mark Berumen, who arrested defendant. Defendant was driving a Honda Accord at the time. Officer Zendejas also attended court proceedings involving defendant in November 2011 and January 2012. On September 8, 2012, when his shift ended at 6:30 p.m., Officer Zendejas changed into civilian clothing and left the station driving his personal car, followed by another off-duty officer, Ruben Guerrero. As Officer Zendejas reached Pacific Avenue, a silver Honda Accord pulled to the right and stopped oddly, too far from the curb to be parking. Officer Zendejas noticed that the driver was smirking. He and Officer Guerrero later identified defendant as the driver. Officer Zendejas later identified the Honda Accord as the same car defendant had been driving when arrested in August 2011. Defendant tailgated Officer Guerrero for a time on Pacific, then ran a red light at the intersection with Vineland and continued on Pacific. Officer Zendejas turned onto Vineland. Officer Guerrero saw defendant make a fast U-turn on Pacific. Soon Officer Zendejas saw him approaching on Vineland quickly from behind. Defendant pulled alongside in the lane for opposing traffic, smirking, and

People v. Recio CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B247010

JULIO RECIO,

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