P. v. Salinas 3/30/05 CA2/4

State: California

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

Docket No: B167804

Case Date: 07/13/2005

Preview:Filed 3/30/05 P. v. Salinas CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. ALFRED SALINAS, Defendant and Appellant.

B167804 (Los Angeles County Super. Ct. No. BA213459)

APPEAL from a judgment of the Superior Court of Los Angeles County, Tricia Ann Bigelow, Judge. Affirmed in part; reversed in part. Richard D. Miggins, 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, Joseph P. Lee, Chung L. Mar and Steven E. Mercer, Deputy Attorneys General for Plaintiff and Respondent.

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Alfred Salinas appeals his conviction for second degree murder. He claims a pretrial photographic lineup was impermissibly suggestive and tainted a later, in-court identification; that he should have been readvised of his Miranda1 rights during a second police interview; and that his counsel was ineffective in failing to object to the Miranda violation. He claims counsel also was ineffective in failing to object to repeated prosecutorial misconduct during argument. He argues error in the court's admission of hearsay testimony by a witness, in its admission of a video recreation of the shooting, and in its reconvening the jury to determine the priors after receiving the guilty verdict. He asserts a one-day error in the calculation of his credits, and complains that he was erroneously denied post-verdict access to juror information. Finally, he claims he was improperly sentenced to the upper term for the gun use enhancement under Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531]. We conclude there was Blakeley error, necessitating remand for resentencing. Except for the resentencing, as to which a partial reversal is required, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL SUMMARY At about 2:00 p.m. or 3:00 p.m. on August 19, 2000, Sophia Gomez told her mother she was going out to look for appellant and left her mother's house in her dark blue Honda. Appellant and Sophia went to Marcelino's Bar and Caf

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