People v. Molina CA2/4

Filed 8/17/15 P. v .Molina CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B253056

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA369149) v.

ERIK O. MOLINA,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Esther P.Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Erik O. Molina appeals from a judgment entered after a jury convicted 1 him on one count of second degree murder (Pen. Code, § 187) and one count of voluntary manslaughter (§ 192, subd. (a).) The jury found true the allegation that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury and death. (§ 12022.53, subds. (b)-(d).) In this appeal, appellant contends the trial court erred in failing to instruct the jury sua sponte as to gross vehicular manslaughter and misdemeanor vehicular manslaughter as lesser included offenses to murder. Finding no error, we affirm. FACTUAL AND PROCEDURAL SUMMARY In March 2010, appellant, a member of the Mid City Stoners gang, was staying with his then-girlfriend, Brenda Varela. Varela lived in 18th Street gang territory with her children and grandchildren. The 18th Street gang was a rival of the Mid City Stoners gang. Ryan O’Connell, a family friend and a member of the 18th Street gang, also visited the home frequently. On March 13, 2010, appellant got into an argument with O’Connell. O’Connell made a gesture with his hand, indicating that appellant “talk[s] too much.” Appellant reached into his pocket, pulled out a gun, and shot O’Connell in the head. Appellant fled through the front gate. Appellant called Angel Taylor, another girlfriend of appellant. Taylor was in a car with Jesus Espinosa, appellant’s friend and fellow Mid City Stoners gang member. Taylor and Espinosa picked up appellant; he told them that he had just shot someone and that he needed to pick up the gun he had used. After appellant retrieved the gun, Taylor drove him to a hotel. On March 23, 2010, appellant borrowed Taylor’s Ford Explorer SUV and was driving with Espinosa. The two men went to a tax business run by Rocky Lopez, a member of the Harpys gang. Several men were present outside of the business. Espinosa was armed with a gun; appellant was not. Appellant stayed outside while Espinosa entered the building. Once inside, Espinosa had a disagreement with Lopez, who told