P. v. Perez 8/21/08 CA2/1

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State: California

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

Docket No: B198165

Case Date: 11/19/2008

Preview:Filed 8/21/08 P. v. Perez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO PEREZ, Defendant and Appellant.

B198165 (Los Angeles County Super. Ct. No. BA298659)

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Champagne, Judge. Affirmed with directions. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent. _______________________________________

Rodrigo Perez appeals from the judgment entered following a jury trial in which he was convicted of one count of attempted murder, seven counts of attempted premeditated murder of a peace officer, one count of assault with a semiautomatic firearm, seven counts of assault on a peace officer with a semiautomatic firearm, and one count of felony vandalism. The jury further found that defendant personally used a firearm and inflicted great bodily injury, and that the offenses were committed for the benefit of a criminal street gang. Defendant was sentenced on one of the counts of attempted murder of a peace officer to 15 years to life plus an enhancement of 25 years to life for personal use of a firearm causing injury. Sentences on the remaining attempted murder offenses were imposed concurrently, sentences on the assault counts were imposed but stayed under Penal Code section 654, and the remaining firearm use enhancements were also imposed but stayed, for an aggregate term of 40 years to life in state prison. Defendant contends that (1) the evidence was insufficient to support the findings that (a) he reasonably should have known that some of the victims were peace officers (and alternatively that trial counsel rendered ineffective assistance as to this issue) and (b) the attempted murders were premeditated, and the evidence was also insufficient to support his convictions of (c) all but one of the attempted murders and (d) felony vandalism. Defendant further contends that (2) stayed firearms enhancements should not have been imposed at all and (3) conduct credits were erroneously denied. We affirm the judgment and direct the trial court to grant precommitment conduct credits. BACKGROUND On July 1, 2005, Los Angeles police officers who were sitting in an unmarked car across from Christopher Dena Elementary School on Olympic Boulevard and Grande Vista Avenue in East Los Angeles saw a car stop in front of the school. Defendant got out from the front passenger seat and, using a can of spray paint, sprayed graffiti on two walls that identified the Eighth Street gang. Defendant then got back into the car, which sped off. A gang expert testified that defendant is a member of the Eighth Street criminal street gang, which is a rival of the Varrio Nueva Estrada (VNE) gang. Eighth Street 2

claims territory bordered on one side by Grande Vista Avenue. VNE claims the territory on the other side of Grande Vista. On the afternoon of the following day, July 2, 2005, defendant, his girlfriend, Vanessa Espinoza, and Espinoza's cousin, Lissette Guerrero, attended a barbeque in Elysian Park. Guerrero testified that the three left the barbeque after dark. Defendant dropped Guerrero and Espinoza off at defendant's house and drove away. Espinoza testified (under a grant of immunity) that defendant woke her up around 3:00 a.m. the next morning (July 3). Defendant appeared drunk and told Espinoza he thought he had shot a cop. Meanwhile, about 1:30 a.m. on July 3, 2005, officers responded to a report of a carjacking. The car which had been stolen was at an apartment building parking lot abutting the VNE side of Grande Vista Avenue. Officers arrived at the scene and detained some of the carjack suspects. The carjack victims were brought to the scene for in-field identifications. At one point, eight uniformed officers and one of the carjack victims, as well as three marked police cars, were in the parking lot. A fourth marked police car was at a nearby corner. One of the officers noticed a car with two people inside turning from Olympic onto Grande Vista, driving about 60 feet away at 10 to 15 miles per hour. A shot was fired from the passenger side window. The shot hit the middle finger of Officer Rodolfo Fuentes, who was standing next to the carjack victim. Fuentes dropped down (as did the other officers at the scene) and pulled the carjack victim down with him. The car, with what appeared to have been two males inside, sped off. The parking lot where the officers were standing had an "overhang illuminated light." There were also some trees between the lot and Grande Vista. The lighting conditions were described by one officer as "good enough where you can see." Another officer described the lighting as "very dim" and "very dark." When the shot was fired, several officers were standing in an area near the carjack victim and his car. As described in the testimony of the various officers, the carjack victim (counts 17

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