P. v. Rivera 4/25/07 CA2/4

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State: California

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

Docket No: B187176

Case Date: 07/12/2007

Preview:Filed 4/25/07 P. v. Rivera CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JESUS RIVERA, Defendant and Appellant.

B187176 (Los Angeles County Super. Ct. No. BA281996)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed in part, reversed in part. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Lance E. Winters, Stephanie C. Brenan and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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Jesus Rivera appeals from his conviction of attempted murder, assault with a firearm, and shooting from a motor vehicle. He argues that his conviction for assault with a firearm should be reversed because that crime is a lesser included offense to the offense charged in count 3, discharging a firearm from a motor vehicle, and to the offense charged in count 1, attempted murder. Appellant also argues that the imposition of the upper terms on counts 2 and 3 and the enhancement on count 2 violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. We find merit in appellant's argument that assault is a lesser included offense to discharging a firearm from a motor vehicle, but conclude that it is not a lesser included offense to attempted murder as charged. We also conclude that any error in the imposition of the upper terms on counts 2 and 3 and the enhancement was harmless beyond a reasonable doubt in light of the factors relating to appellant's recidivism, as to which there is no right to jury trial.

FACTUAL AND PROCEDURAL SUMMARY Appellant does not challenge the sufficiency of the evidence to support his convictions. Accordingly, we provide only a brief factual summary, viewing the record in the light most favorable to the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.) On April 2, 2005, Isadore Sotelo was in his apartment in Los Angeles. At 2:00 p.m., he heard someone yelling, "Run. Run as fast as you can." Sotelo looked out his window and saw a silver Expedition turn the corner. He saw his cousin, Robert Garcia, try to get in the front door of his apartment. When Garcia could not get in the door, he jumped onto some scaffolding and ran down the side of the building. Sotelo recognized the driver of the silver Expedition as appellant. Sotelo knew that appellant is a member of the Fraser Maravilla gang. Sotelo saw appellant pull out a black handgun, point it out of the driver's window, and shoot once toward the driveway where Garcia had run. He saw Garcia fall down. Sotelo came downstairs and found that Garcia had been shot. Appellant drove away. Garcia suffered a bullet wound to the middle of his back, through his lung. The bullet

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was very close to major blood vessels, the spine, and nerves. He was near death when he arrived at a hospital, and would have died but for the emergency surgery he received. Appellant was convicted as charged with attempted premeditated willful, and deliberate murder (Pen. Code,

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