People v. Aviles CA5

Filed 5/5/14 P. v. Aviles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065396 Plaintiff and Respondent, (Super. Ct. No. BF126367A) v.

ULYSES AVILES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Alison E. Kaylor, 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 Gomes, Acting P.J., Kane, J. and LaPorte, J.† † Judge of the Superior Court of Kings County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION On February 24, 2010, appellant, Ulyses Aviles, was charged in an information with the first degree murder of Carlos Serrano (Pen. Code, § 187, subd. (a))1 and three prior prison term enhancements (§ 667.5, subd. (b)). On March 21, 2012, the trial court denied Aviles’s suppression motion. At the conclusion of a jury trial on April 19, 2012, the jury acquitted Aviles of first and second degree murder but found Aviles guilty of voluntary manslaughter. In a bifurcated proceeding, the trial court found two of the prior prison term enhancements true. At the sentencing hearing on July 3, 2012, the trial court denied Aviles’s motion for a new trial. The court sentenced Aviles to the upper term of 11 years plus a consecutive term of one year for one of the prior prison term enhancements for a total prison sentence of 12 years. The court awarded 1269 days of credits for time in custody, conduct credits of 190 days, and total custody credits of 1459 days. Direct victim restitution was reserved. The court imposed various fines and fees, included a restitution fine of $240. Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). FACTS People’s Case On January 11, 2009, before 8:00 p.m., Keith Clifford and Carlos Serrano left in a Saturn Ion searching for marijuana. Clifford was driving. A truck with its high beams on pulled beside Clifford’s car. Clifford pulled off Highway 46 on to Bruning Street and saw the same truck drive past him. The truck, driven by Aviles and with four male passengers, returned and stopped beside the driver’s side of Clifford’s car. Aviles,