People v. Valdez CA4/3

Filed 12/23/14 P. v. Valdez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048627

v. (Super. Ct. No. 11NF2871)

ALBERT VALDEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Reversed. Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Albert Valdez of attempted voluntary manslaughter (Pen. Code, §§ 664; 192, subd. (a); all further references are to this code), firearm possession by a felon (§ 12021, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a) [street terrorism]). The jury found several penalty enhancements applied, including that Valdez committed the manslaughter and firearm possession offenses for the benefit or in association with a criminal street gang (§ 186.22, subd. (b)) and that he personally used (§ 12022.5, subd. (a)) and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (c), (d)). Valdez correctly argues the trial court erroneously failed to instruct the jury that a mutual combatant or original aggressor has a revived right of self-defense when his adversaries suddenly escalate a nondeadly confrontation to deadly proportions. (People v. Quach (2004) 116 Cal.App.4th 294 (Quach).) The error requires reversal, and we therefore do not reach Valdez’s sentencing claim the trial court erred in imposing the lesser enhanced penalty for his commission of a “serious” gang-related felony to avoid the bar on the firearm use enhancement when the court imposes an enhanced sentence for a “violent” gang-related felony. (See People v. Rodriguez (2009) 47 Cal.4th 501.) Given the reversal, we also do not reach Valdez’s claim that section 654 bars his enhanced sentence for firearm possession by a felon. I FACTUAL AND PROCEDURAL BACKGROUND On a late September evening in 2011, around 10:00 p.m., several teenage males, including the victim, 19-year-old Itzcoatl Yniguez, and Anselmo Garcia, conversed in Garcia’s front yard on Penmar Avenue in La Habra. A black Honda Accord drove slowly past the residence and one of the occupants rolled down a window and displayed a handsign of the All West Coast (AWC) criminal street gang, which Garcia and his friends recognized as a challenge to fight. Garcia and at least one of his companions belonged to AWC’s rival, the Monos criminal street gang.