People v. Horcasitas CA2/1

Filed 4/30/14 P. v. Horcasitas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B243250

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA380230) v.

MICHAEL HORCASITAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed. Jeralyn Keller, 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, Linda C. Johnson, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant Michael Horcasitas guilty of murder in the first degree. (Pen. Code, § 187, subd. (a).)1 The jury found true the allegation that defendant personally and intentionally discharged a firearm causing death. (§ 12022.53, subds. (b)– (d).)2 The jury found not true the allegation that the offense was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Defendant was sentenced to state prison for a total term of 50 years to life. This appeal followed. The sole issue raised on appeal is whether the trial court abused its discretion in declining to bifurcate the trial of the criminal street gang allegation from the murder trial. The decision not to bifurcate this issue was well within the trial court’s discretion. We therefore affirm. FACTS Defendant, a member of the Varrio 213 gang, met with his friend, Albert Martinez, another individual nicknamed Moco, and the victim, Kurt Deutsch. The purpose of the meeting was that Martinez wanted to buy some counterfeit money on behalf of someone else. Martinez gave $300 to Deutsch, who said he would get the counterfeit money from a friend. Deutsch left and came back with counterfeit bills. Defendant and Moco inspected the bills, were dissatisfied with them, and said so. Defendant told Deutsch to get his friend to fix the counterfeit bills or return the money. Deutsch said his friend was in court and they would have to wait to get hold of him. This meeting took place on July 23, 2010. Defendant tried for the next five days to get the money back from Deutsch. The principal means of communication between defendant and Deutsch was by phone and text message. The 197 calls from defendant on July 24, 2010, alone attests to the intensity of this stream of communication. During this period, defendant told Martinez that Deutsch “was making him look like a bitch by coming around and not paying him back his money” and that Deutsch