People v. Perez CA2/6

Filed 7/17/14 P. v. Perez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B250046 (Super. Ct. No. VA095913) Plaintiff and Respondent, (Los Angeles County)

v.

REFUGIO PEREZ,

Defendant and Perez.

Refugio Perez appeals the judgment entered after he was convicted by a jury of first degree murder. (Pen. Code, §§ 187, subd. (a), 189.)1 The jury found true three special allegations – (1) that the offense was a serious felony; (2) that Perez used a firearm; and (3) that the killing was committed for the benefit of a criminal street gang. Perez was sentenced to an indeterminate sentence of 25 years to life plus a determinate sentence of 10 years pursuant to section 186.22 that was stayed, not dismissed. Although Perez was entitled to 2,587 days of actual presentence custody credits, he was given none. The People concede the sentencing errors.

1 All subsequent statutory references are to the Penal Code.

Perez contends the trial court erred by failing sua sponte to instruct the jury on the imperfect self-defense theory of voluntary manslaughter. We modify and affirm the judgment. FACTUAL AND PROCEDURAL HISTORY The Prosecution's Case Enrique Carrillo was a member of the Elm Street gang. Perez was a member of the Grape Street gang. On the night of June 17, 2006, Elm Street gang members fired shots into the home of Perez's girlfriend, Celia Soto, who was also a member of the Grape Street gang. Perez was spending the night with Celia when the shooting occurred. On June 18, 2006, Perez borrowed Celia's car and drove to Carrillo's house with another Grape Street gang member called "Gato." His intention was to retaliate for the shots fired at Celia's house the night before. Perez admitted to detectives that when he saw Carrillo sitting on his porch he began firing at him with a nine-millimeter pistol. Although Perez claimed Carrillo had a gun and that he fired a shot at him, no gunshot residue was found on Carrillo's body and no weapon was found at the scene of the crime. Carrillo was hit in the chest and the arm and was killed. Perez was arrested at Celia's residence soon after the incident. Spent nine-millimeter shell casings were found in Celia's car. Gunshot residue was found on Perez's hands. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Perez confessed to shooting Carrillo in retaliation for the shots fired at the house occupied by him and Celia. A gang detective testified that a gang member who has been wronged or disrespected must retaliate immediately so as not to appear weak before rivals and fellow gang members. Perez's Case At trial, Perez denied that he shot and killed Carrillo. He claimed that he was pressured into accompanying Gato to Carrillo's house but thought it was just