California Court of Appeal Apr 26, 2013 No. E055811Unpublished
Filed 4/26/13 P. v. Vargas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055811
v. (Super.Ct.No. HEF005066)
ARNOLDO ESTEVEZ VARGAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.
Affirmed with directions.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Michael Pulos,
Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Arnoldo Estevez Vargas appeals from judgment entered following a
jury conviction for premeditated murder (Pen. Code, § 187, subd. (a)1). The jury also
found true allegations that the murder was committed for the benefit of a criminal street
self-defense (CALCRIM No. 571), and first and second degree murder (CALCRIM Nos.
520 and 521). Based on these instructions, the jury rejected the defense theories of self-
defense and imperfect self-defense, finding that defendant acted with deliberation when
he fired at Estrada. It is therefore unlikely that, had the jury been instructed on the
provocation pinpoint instruction, the jury would have found defendant did not act with
deliberation but, rather, acted rashly, out of fear Estrada would do something to harm
7
him. In addition, there was overwhelming evidence that the incident involved a gang
fight, in which defendant‟s gang was brutally beating up Estrada and defendant
deliberately shot Estrada as he attempted to flee. Accordingly, we find no instructional
error.
IV
SENTENCING ERROR
Defendant was convicted of first degree murder, and the jury found true the
allegation that the murder was committed for the benefit of a criminal street gang. The
trial court imposed a 25 year to life sentence on the murder conviction, and a consecutive
three-year term on the gang enhancement under section 186.22, subdivision (b)(1).
Defendant contends, and the People agree, the trial court erred in imposing the fixed,
three-year term for the gang enhancement. Under the exception for felonies punishable
by an indeterminate life term under section 186.22, subdivision (b)(5) (formerly section
186.22, subd. (b)(4)), the court should therefore strike the three-year gang enhancement
term attached to the murder offense.
Ordinarily, the court may sentence a person who commits a violent felony for the
benefit of a criminal street gang with an additional term of 10 years (three years under the
former version of the statute in effect in 1998, when the charged crime occurred).
(§ 186.22, subd. (b)(1)(C).) Section 186.22, subdivision (b)(5), provides a different
penalty for a person who commits a felony punishable by life imprisonment, namely, an
increased minimum parole period of 15 years. As noted by the parties, the California
Supreme Court held that the Legislature intended to apply this penalty instead of the
8
additional consecutive enhancement term under section 186.22, subdivision (b)(1).
(People v. Lopez (2005) 34 Cal.4th 1002, 1007; see also People v. Flores (2005) 129
Cal.App.4th 174, 187.) Therefore, the three-year gang enhancement attached to count 1
must be stricken.
V
DISPOSITION
The trial court is directed to strike the three-year gang enhancement under section
186.22, subdivision (b)(1), attached to count 1. In all other respects, we affirm the
judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RICHLI Acting P. J.
KING J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in refusing to instruct the jury on provocation, but it erred in imposing a three-year gang enhancement for a murder conviction carrying a life term.
Issues
Whether the trial court erred in refusing to instruct the jury on provocation (CALCRIM No. 522).
Whether the trial court erred in imposing a fixed three-year term for a gang enhancement under Penal Code section 186.22, subdivision (b)(1) for a murder conviction.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“Even assuming the homicide occurred as defendant described it in his recorded statement, there was insufficient evidence to support a provocation instruction.”
“The trial court is directed to strike the three-year gang enhancement under section 186.22, subdivision (b)(1), attached to count 1.”