People v. Gracia CA2/6

Filed 1/19/16 P. v. Gracia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B259584 (Super. Ct. No. VA122592) Plaintiff and Respondent, (Los Angeles County)

v.

GILBERT ANTHONY GRACIA,

Defendant and Appellant.

Gilbert Anthony Gracia was being kidnapped by Anthony Sanchez over a drug transaction. Sanchez's cousin, Roger, overheard the ruckus and came to his aid. Gracia shot and killed Roger. Gracia appeals from his conviction by jury of first degree murder (Pen. Code,1 §§ 187, subd. (a), 189). He contends that the trial court erred in failing to instruct the jury on the lesser included offenses of second degree murder and voluntary manslaughter. Appellant was also convicted of possession of a firearm by a former felon (§ 12021, subd. (a)(1)); kidnapping to commit robbery (§ 209, subd. (b)(1)); kidnapping (§ 207, subd. (a)); and two assaults with a firearm (§ 245, subd. (a)(2)). The jury found true firearm allegations (§ 12022.53, subds. (b), (c), (d)), and special circumstance allegations that the murder was committed during the commission of a

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

kidnapping (§§ 190.2, subd. (a)(17)(B), 207) and a robbery (§§ 190.2, subd. (a)(17)(A), 211)). The trial court sentenced appellant to life in prison without the possibility of parole, plus 38 years. Appellant also contends that the court erred by imposing a parole revocation fine, and that his kidnapping conviction must be reversed because it is a lesser included offense of kidnapping to commit robbery. Respondent correctly concedes the latter contention. We reverse the kidnapping conviction and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant and Richard Martinez gave Michael Leon several hundred dollars to buy methamphetamine from Jose Antonio (Tony) Sanchez.2 Leon gave Sanchez the money but Sanchez kept it, claiming that Leon owed him money from an earlier drug deal. Leon returned empty-handed and reported what had happened. A week later, appellant, Martinez and three others went to a house where Sanchez was visiting his cousin Roger Sanchez (Roger) and other relatives. They waited in a nearby alley until Sanchez came out. Martinez and appellant confronted Sanchez and asked for their money. Sanchez said he was keeping the money because Leon owed it to him. Appellant took out a gun and said, "Let me make this easier for you." He placed the gun against Sanchez's temple and tried to shove him into a car. Hearing the commotion, Roger yelled something to the effect that "that" was not going to happen. Appellant turned and fatally shot Roger. After shooting Roger, appellant turned back to Sanchez. He placed his arm around Sanchez's neck and put him in a car, while pointing a gun at him. Martinez sat in the back seat of the car. He and appellant told Sanchez to empty his pockets. Sanchez complied and gave appellant about $80-$100. They took Sanchez to his house, where he obtained more money and some "dope," which he gave to appellant and Martinez. They put Sanchez back in the car, drove around for a while, then dropped him off on a street corner. DISCUSSION 2 The prosecution charged Richard Martinez with voluntary manslaughter. He pled guilty and testified for the prosecution.