P. v. Bocanegra 10/25/07 CA2/4

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State: California

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

Docket No: B183267A

Case Date: 02/13/2008

Preview:Filed 10/25/07 P. v. Bocanegra CA2/4 Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. JAVIER BOCANEGRA, Defendant and Appellant.

B183267 (Los Angeles County Super. Ct. No. NA063127)

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean Jr., Judge. Affirmed. John A. Colucci for Defendant and Appellant. Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General and Ryan B. McCarroll, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Javier Bocanegra appealed from his conviction of attempted murder and possession of a firearm by a felon, contending that the trial court erred in failing to give, sua sponte, instructions on attempted manslaughter and assault with a deadly weapon and in imposing an upper term sentence based on judicial findings. We issued an opinion dated September 29, 2006 affirming the judgment. This case is now on remand from the United States Supreme Court for reconsideration in view of its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which held California's determinate sentencing law (DSL) unconstitutional, disagreeing with the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238, judg. vacated and cause remanded sub nom. Black v. California (2007) __ U.S. __ [127 S.Ct. 1210] (Black I). We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on the trial court's decision to impose the upper term sentence. While the case was pending, counsel for appellant sought additional time to discuss the California Supreme Court's post-Cunningham analysis of the DSL in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We afforded the parties additional time to address those decisions.1

Another issue raised in the original appeal was whether the trial court should have instructed the jury on assault with a deadly weapon, which appellant claimed would be a lesser included offense of attempted murder if the enhancement for use of a firearm were included as part of the charge. In our original opinion, we concluded the answer was "no" based on People v. Wolcott (1983) 34 Cal.3d 92. Shortly before resubmission, the California Supreme Court issued its opinion in People v. Sloan (2007) 42 Cal.4th 110 and the companion case People v. Izaguirre (2007) 42 Cal.4th 126, reaffirming the principle underlying Wolcott. We have updated our analysis to reflect the new Supreme Court authority, but our conclusion on that and the other non-sentencing issue remains as stated in our original opinion.

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After review of Cunningham, Black II, Sandoval, and the parties' supplemental briefs, we conclude that the trial court's sentencing choices did not violate Supreme Court precedent, and that remand to the trial court for reconsideration of the sentence is not required.

FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged with the attempted murder of Quennie Reyna (Penal Code,2

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