P. v. Acosta 4/14/05 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B170330

Case Date: 06/29/2005

Preview:Filed 4/14/05 P. v. Acosta CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. JESUS XAVIER ACOSTA, Defendant and Appellant.

B170330 (Los Angeles County Super. Ct. No. VA073500)

APPEAL from a judgment in the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Affirmed in part, reversed in part and remanded. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Lawrence M. Daniels and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jesus Xavier Acosta appeals from the judgment entered following a jury trial that resulted in his conviction of voluntary manslaughter. He contends: (1) the trial court prejudicially erred in failing to give CALJIC No. 2.01; and (2) the trial court committed sentencing error under Blakely v. Washington (2004) 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed. 403 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We reverse the judgment as to the sentence only and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Viewed in accord with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant fatally shot Cesar Abrica, known as "Crank," at about 5:30 p.m. on October 16, 2002. The only real issue at trial was whether defendant acted in self-defense. In support of the prosecution's theory of murder, witnesses testified that they saw Abrica running up Orchard Avenue, apparently being chased by defendant driving a gray Mustang. When Abrica ran up a driveway, defendant stopped the car and fired at Abrica through the driver's side window. Defendant then sped away in the Mustang.1 The defense presented evidence that Abrica associated with gang members. Defendant's brother, girlfriend, and several friends testified that Abrica and Abrica's friends had been harassing defendant and defendant's friends for several months before the shooting, including chasing defendant, starting fist fights with him and threatening to "smoke" him. Testifying in his own behalf, defendant could recall no incident that would have triggered his problems with Abrica. Defendant described more than half a dozen

Abrica died from a single gunshot wound to the head. There was no soot or stippling at the point of entry. The medical examiner testified that the wound was consistent with someone running away and turning briefly sideways. 2

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altercations between himself and Abrica in the year prior to the shooting. Fearful that Abrica's threats to kill him were serious, defendant acquired a gun about a month before the shooting. On the day of the shooting, defendant borrowed his girlfriend, Jessica's, car to drive to a late morning dentist appointment. Three or four hours later, after having two teeth pulled, defendant drove himself home and took some medicine. Some time later, although drowsy and in pain, defendant went to the home of his friend, Marcos, where Marcos installed stereo speakers in Jessica's car. Marcos and defendant then went clothes shopping, but defendant felt unwell, so he took Marcos home. After dropping Marcos off, defendant moved the gun from the back seat to the front. On the way home, defendant saw Abrica walking across the street at the intersection of Bell and Orchard. Abrica threw some gang signs at defendant and told defendant to come over. Defendant stopped to talk to Abrica because he was tired of being afraid and wanted to tell Abrica to leave him alone; having the gun made him feel safer. While defendant continued driving, Abrica walked next to the car and the two men argued. Abrica called defendant names and repeated his threat that Abrica and his "homies" were going to "smoke" defendant. Abrica stopped walking at the driveway to 6629 Orchard Avenue. He looked around then suddenly bent down and reached for his waist in a manner that made defendant think Abrica was reaching for a gun. Believing that Abrica was going to shoot him, defendant grabbed his own gun from under the seat and shot Abrica. Defendant drove away in a panic. He denied chasing Abrica and maintained that Abrica was not running, but was walking along side the Mustang. No gun or other weapon was found near Abrica's body. Defendant was charged with special circumstance first degree murder (Pen. Code,

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