P. v. Lopez-Figueroa CA6

Filed 6/28/13 P. v. Lopez-Figueroa CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037723 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS091553)

v.

EZEKIEL LOPEZ-FIGUEROA,

Defendant and Appellant.

Defendant Ezekiel Lopez-Figueroa was convicted by jury trial of first degree 1 murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true gang allegations (§ 186.22, subd. (b)(1)) as to the murder, attempted murder, and assault counts, firearm allegations (§ 12022.53, subds. (c) & (d)) as to the murder and attempted murder counts, and an allegation that the attempted murder had been committed willfully, deliberately, and with premeditation (§ 664). Defendant was committed to state prison to serve a term of 50 years to life for the murder count consecutive to a life term plus 20 years for the attempted murder count, and a consecutive eight-month term for the gang count. On appeal, he contends that he was deprived of due process because the information failed to allege that the attempted

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

murder was willful, deliberate, and premeditated. We find no basis to disturb the judgment. However, we direct the trial court to correct a clerical error on the abstract of judgment.

I. Background The facts are not relevant to the sole issue on appeal. Defendant fired seven shots at a boy whose young sister was standing next to him. The girl died, and the boy was 2 wounded. Defendant made a videotaped confession to the police in which he admitted that he had aimed his gun at the brother and knew the girl was next to him. Defendant waived preliminary examination. The November 2009 original information did not include an allegation that the attempted murder was willful, 3 deliberate, and premeditated. The trial briefs filed by the defense and the prosecution on October 21, 2011 each proposed that the court instruct the jury with CALCRIM No. 601. CALCRIM No. 601 is the instruction on the allegation that an attempted murder was willful, deliberate, and premeditated. The prosecution‟s trial brief also included proposed verdict forms. The proposed verdict form for the attempted murder count included this special allegation. It read: “We, the Jury, further find the allegation that the crime was WILLFUL, DELIBERATE, AND PREMEDITATED to be [TRUE/NOT TRUE].” The amended information filed on October 24, 2011, like the original information, did not mention this special allegation. Jury selection began on October 24, 2011. The prosecution made its opening statement on October 26. In her opening statement, the prosecutor said: “We will prove that this was first degree murder, attempted murder, with premeditation and deliberation,