People v. Basquez CA2/6

Filed 1/22/15 P. v. Basquez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B254537 (Super. Ct. No. 1432885) Plaintiff and Respondent, (Santa Barbara County)

v.

IRVIN ALLAN BASQUEZ,

Defendant and Appellant.

Irvin Allan Basquez appeals from the judgment entered after a jury convicted him of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a))1 and burglary of the first degree. (§§ 459, 460.) The jury found true allegations that appellant had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The jury also found true one prior conviction of a serious or violent felony within the meaning of California's "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)); one prior prison term (§ 667.5, subd. (b)); and one prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1). Appellant was sentenced

1 All statutory references are to the Penal Code unless otherwise stated.

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to prison for a determinate term of 10 years followed by an indeterminate term of 14 years to life. In his opening brief appellant states: "[I]t was undisputed that someone stabbed the victim [Dustin Randolph] . . . . The issue at trial was whether appellant [or another unidentified person] committed this offense." Appellant contends that the trial court erroneously failed to sua sponte instruct the jury that the testimony of an accomplice must be viewed with caution and corroborated by other evidence. In addition, appellant contends that the court erroneously admitted evidence of a BB gun that was found in his possession two days after the stabbing. We affirm. Facts In January 2013 Christopher Thomas, Jarred Syslo, and Steven Sorheim were passengers in a Ford Escort that was being driven by Cameron Taylor. Taylor picked up appellant, who said that he wanted to go to Dustin Randolph's house. At trial Thomas testified that, on the way there, appellant "seemed really disturbed, like something was wrong." Thomas and Sorheim "kept saying what's going on dude, what's going on?" Appellant replied, " '[J]ust take me over there, just take me over there.' " Taylor did so and parked the Escort at the entrance to a cul-de-sac. It was about 7:00 p.m. Appellant got out of the vehicle and walked alone to Randolph's house, which was at the end of the cul-de-sac. Appellant was greeted by Randolph and then stabbed Randolph 9 times. Two days after the stabbing, Thomas told Detective Matt Fenske a different version of what had happened inside the Escort. Thomas said that, when appellant entered the car, he was " 'fucking livid.' " Appellant "was telling everyone in the car that he was going to take out everyone at [Randolph's] house." Appellant said, " 'I don't give a fuck. I'm going to hurt some motherfuckers over here. That's it.' " Appellant "had a semi-automatic weapon between his legs" and was "racking" the slide of the firearm back and forth. Appellant said that "he was going to shoot them up." Thomas "was trying to talk sense into [appellant] during this whole time." Upon arriving at the