People v. Bernal CA2/2

Filed 10/16/14 P. v. Bernal CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B251438

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA125356) v.

NICANDRO CORTEZ BERNAL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Nicandro Cortez Bernal (“Defendant”) appeals his convictions of second-degree murder and attempted murder, for which he is currently serving a 35- years-to-life sentence. He argues that the verdicts are tainted by three instructional errors. We review the instructions de novo (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311-1312), and conclude there was no error.

FACTS AND PROCEDURAL HISTORY Defendant and his 15-year-old nephew visited a taco stand. They exchanged words and punches with Juan Medina (“Medina”), one of the stand’s employees, but eventually left. They later returned, but this time Defendant brought a shotgun and his nephew brought a knife. Medina had since tucked a BB gun into his apron. Upon arriving, Defendant drew his shotgun, Medina fled, and Defendant shot him in the back. An unknown shooter shot Defendant’s nephew in the chest with a .38- or .357-caliber bullet. Medina lived; the nephew did not. The People charged Defendant with (1) the attempted murder of Medina (Pen. Code, §§ 664, 187);1 and (2) the murder of his nephew, on the theory that Defendant’s provocative act of shooting at Medina set in motion the chain of events resulting in his nephew’s death (§ 664). The jury found Defendant’s acts were not premeditated, and accordingly found him guilty of the attempted (but not premeditated) murder of Medina, and the second (but not first) degree murder of the nephew. The court imposed a sentence of 35 years to life on the second degree murder charge, based on 15 years for the murder plus 20 years for a firearm enhancement. The court stayed the attempted murder sentence under section 654. Defendant appeals.