People v. Evangelista CA2/8

Filed 3/28/24 P. v. Evangelista CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B328423

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA506988) v.

ROBERT FRANKES EVANGELISTA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed in part and reversed in part with directions. Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Ana R. Duarte and Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Robert Frankes Evangelista appeals from his conviction of one count of carjacking, one count of robbery and one count of attempted robbery. He contends the trial court committed instructional error, evidentiary error and sentencing error, and also raises a claim of ineffective assistance of his trial counsel. We reverse the sentence imposed on counts 1 and 2 and remand for the limited purpose of allowing the trial court to conduct a new sentencing hearing. We affirm the judgment of conviction in all other respects. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged, along with codefendant Hugo Pereida, with carjacking (Pen. Code, § 215, subd. (a); count 1), second degree robbery (§ 211; count 2), attempted carjacking (§§ 215, subd. (a), 664; count 3), and attempted robbery (§§ 211, 664; count 4). The charges arose from events that occurred on July 6, 2022, involving two different victims, Cris Flores (counts 1 & 2) and his father, Luis Flores (counts 3 & 4). Cris Flores lived with his father in Boyle Heights. On July 6, 2022, around 6:30 a.m., Cris arrived home from working the graveyard shift at his job. His father’s BMW was parked in front of the house when he got home. The BMW is silver and has distinctive chrome rims. Sometime later that morning, Luis was getting ready to leave for his job, but could not find his car keys. He woke up Cris and they searched the house. They were unable to find the keys. Around 11:00 a.m., Luis noticed his BMW was no longer parked in front of their house. Cris got into his black Dodge and drove around the neighborhood looking for the BMW to no avail. In the meantime, Luis called 911 to report the car stolen and was told that a unit would be responding to the house, but no officers ever arrived.