People v. Covarrubias CA2/2

Filed 7/29/14 P. v. Covarrubias CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B250029

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA398657) v.

RENE COVARRUBIAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa B. Lench, Judge. Reversed and remanded.

Marta I. Stanton, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________________________

After a third jury trial, defendant Rene Covarrubias was convicted by a jury of possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1)1 (count 3).2 The trial court sentenced defendant to six years in state prison. Defendant appeals on the grounds that: (1) the trial court prejudicially erred in failing to give a unanimity instruction with respect to count 3; (2) the trial court improperly admitted other bad act evidence; (3) the trial court’s denial of defendant’s request for a continuance of the sentencing hearing violated defendant’s due process rights; and (4) defendant requests an independent review of the trial court’s in camera hearing on a Pitchess motion.3 We find that the trial court’s failure to give a unanimity instruction was error, and that the error was not harmless. Accordingly, we reverse the judgment. FACTS Prosecution Evidence On August 23, 2011, at approximately 7:00 p.m., Jermaine Marbuery was walking on West 58th Street in Los Angeles, going from his house to a mini-market. He saw defendant in front of defendant’s home, talking to two acquaintances, Stub and Jay. Marbuery knew defendant from growing up together. Defendant said hello to Marbuery, shook his hand, hugged him, and said, “You know you owe me.” Marbuery was caught off guard and angered by the statement. Marbuery had borrowed $15 from defendant about 10 years before, but Marbuery believed that defendant had stabbed his brother about 20 years ago. Defendant and Marbuery had words, and defendant challenged him to a fight. When Marbuery declined,