People v. Guerrero CA2/2

Filed 6/2/14 P. v. Guerrero CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B248102

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA061047) v.

ABRAHAM E. GUERRERO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Dalila Corral Lyons, Judge. Affirmed.

Leonard Klaif, 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, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Abraham E. Guerrero of one count of attempted murder, a violation of Penal Code sections 664/187, subdivision (a)1 (count 1) and one count of mayhem in violation of section 203 (count 3). With respect to both counts, the jury found that defendant personally and intentionally discharged a firearm causing great bodily injury to the victim within the meaning of section 12022.53, subdivision (d). The trial court sentenced defendant to the midterm of seven years in count 1 plus 25 years to life for the firearm enhancement for a total sentence of 32 years to life on that count. The trial court stayed a midterm sentence of four years plus a 25-years-to-life firearm enhancement in count 3 pursuant to section 654. Defendant appeals on the ground that the trial court committed prejudicial error by not admitting evidence of third party culpability. FACTS Prosecution Evidence On February 16, 2008, Angel Arroyo, who was 17, went to a surprise birthday party for a soccer teammate of his, Giovanni Ochoa. He was accompanied by his twin sister, Angelica, his nephew, Joshua, and a friend, Yesenia. Angel noticed that a young man named Cees was at the party, which was held in a backyard. Cees and defendant were standing against a wall. Angel told Joshua and Angelica that he had been in an altercation with Cees’s younger brother. Angel kept watch on Cees and defendant and saw that other men joined them until there were four or five of them. These men did not mingle with the others at the party. One of these men was Black. As Angel began dancing with Yesenia, he was punched from behind. He turned and saw Cees, and they began fighting. The rest of Cees’s companions tried to join in, and Ochoa’s uncle, Emmanuel Lopez, intervened. Lopez pushed Cees toward a wall, and Angel saw defendant trying to pull a gun out of his waistband. Angel saw defendant