P. v. De La Rosa CA2/6

Filed 3/18/13 P. v. De La Rosa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B237977 (Super. Ct. No. VA100841) Plaintiff and Respondent, (Los Angeles County)

v.

JORGE CORRALES DE LA ROSA,

Defendant and Appellant.

Jorge Corrales De La Rosa walked into a barbershop and shot a rival gang member who was having his haircut. De La Rosa appeals a judgment after the jury found him not guilty of murder, and guilty of voluntary manslaughter with personal use of a firearm. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a).) The jury found not true a gang enhancement allegation. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced De La Rosa to 21 years in state prison. De la Rosa contends that the court had a sua sponte duty to instruct the jury on involuntary manslaughter because there was evidence that he did not have the intent to kill, he did not act with conscious disregard for human life, and he acted with an honest but unreasonable belief that lethal force was necessary for self-defense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND De La Rosa is a member of the JBI ("Just Blazing It") gang. The 18th Street gang is JBI's rival. Until April of 2007, Magdaleno's Barber Shop was a neutral area in which rival members could have their haircut without confrontation. Early in April, De La Rosa's brother put JBI graffiti on Magdaleno's awning. Then 18th Street members crossed out the JBI graffiti. On April 8, 2007, JBI member Robert "Scrappy" Ramos went to Magdaleno's and had his haircut. Members of 18th Street were also present. Ramos testified that the 18th Street members gave him hostile looks. One 18th Street member who shared Ramos' nickname, "Scrappy" Diaz, removed his shirt and displayed a large 18th Street tattoo across his chest. Diaz sat across from Ramos and stared at him. Ramos testified that he felt threatened. Ramos used his cellular phone to contact other JBI members and associates, including De La Rosa. When De la Rosa spoke to Ramos, he thought Ramos' voice sounded normal, but he thought that Ramos was in danger. De La Rosa wanted to get "manpower" to help Ramos. According to De la Rosa, he and several other people who were associated with JBI gathered outside the barber shop. De La Rosa testified that he called Ramos and Ramos came out of the barber shop. But Ramos wanted to go back into the barber shop to confront Diaz. De La Rosa and the others thought this was a "stupid" plan and they tried to talk Ramos out of it. Ramos ignored them and went back into the barbershop. Ramos said, "Nobody told you guys to come." He seemed aggravated. De La Rosa called a "friend" who told him to get Ramos out of the barber shop. De La Rosa tried to contact Ramos by phone, but this time Ramos ignored the phone. Someone gave De La Rosa a .40 caliber Glock handgun. He put it into his waistband and went into the barber shop to get Ramos. De La Rosa testified that he did not plan to use or "even to brandish" the gun. He intended to sit next to Ramos and convince him not to carry out his plan. De La Rosa knew there were 18th Street members inside, including Diaz who was a