People v. Monterrosa CA2/8

Filed 5/25/16 P. v. Monterrosa CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B264418

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA090077) v.

MACARIO MONTERROSA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed as modified.

Stephen Temko, 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, Victoria B. Wilson and Abtin Amir, Deputy Attorneys General, for Plaintiff and Respondent.

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Macario Monterrosa appeals from his judgment of conviction for first degree murder (premeditated murder) of Rogelio Alvarado and attempted premeditated murder of Juan B. He contends the court should have instructed the jury on imperfect self-defense. We modify the judgment to correct sentencing errors but otherwise affirm. FACTS AND PROCEDURE Appellant belonged to the “Wilmas” gang in the Wilmington area of Los Angeles. His girlfriend at the time of these events, Lizeth P., also belonged to the Wilmas gang. On the night of September 17, 2011, victims Juan B. and Alvarado met at a night club with other friends. They stayed until the club closed and then went to Alvarado’s home with three others. Alvarado’s home was in territory of the Wilmas gang. Alvarado and his friends were drinking beer and socializing in the parking lot of the apartment complex. Around 4:45 a.m., a group of two women and four or five men—including appellant, Lizeth P., and other Wilmas gang members—approached the victims’ group. Appellant walked directly up to Alvarado. Juan B., who was standing next to Alvarado, did not know appellant and had never met him. Juan thought they might fight, based on their body language. He heard appellant speak to Alvarado, but he did not hear what exactly appellant said. He thought appellant asked Alvarado for something. Another witness in Juan and Alvarado’s group heard someone ask for beer. Alvarado responded that they did not have any beer. Appellant “hit [Alvarado] fast” approximately two times. Alvarado “bent over and ran.” The whole episode was very fast and was over in a few seconds. Lizeth P. was at appellant’s side and heard appellant “arguing about drugs” with the victims. Appellant then “got close” to Alvarado, and appellant and his friends “got violent.” She believed appellant stabbed Alvarado because she “felt a bad vibe,” and she saw appellant thrust his arm in a stabbing motion toward Alvarado. Alvarado did not try to hit appellant, and, in fact, Lizeth was surprised when appellant stabbed him. Juan B. watched Alvarado run away and then appellant “hit” Juan as well. The area where appellant hit him felt “hot” and painful. Juan also ran off after that. As appellant and