P. v. Trejo 12/3/07 CA2/8

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State: California

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

Docket No: B195184

Case Date: 02/13/2008

Preview:Filed 12/3/07 P. v.Trejo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. MARCOS TREJO, Defendant and Appellant.

B195184 (Los Angeles County Super. Ct. No. VA093677)

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Marilee Marshall, 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, Jason Tran and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION A jury convicted Marcos Trejo of two counts each of attempted voluntary manslaughter and assault with a firearm. Trejo raises two arguments on appeal. First, he contends the trial court should not have admitted evidence of threats against a witness. Second, he challenges the trial court's imposition of upper terms based on facts found by the court, not the jury. We reject both arguments. The trial court properly admitted evidence of witness intimidation because it reflected on the witness's credibility. The trial court permissibly imposed upper terms based on a recidivism-related factor. BACKGROUND AND PROCEDURAL HISTORY Gabriel Herrera and Jimmy Rosales drove to a liquor store on the afternoon of January 4, 2006. Trejo approached them near the store entrance and asked them where they were from. Both Herrera and Rosales said they did not "bang," and Rosales added that he was from "nowhere." Trejo persisted and said he was from the Garden View Locos. Herrera and Rosales ignored him and went into the store. When they came out, Trejo was still outside, riding his bicycle in circles. As Herrera and Rosales drove away, Trejo pulled a gun from his pocket and shot at their car several times. Based on descriptions that Herrera and Rosales gave police, authorities identified Trejo as a suspect from among known members of the Garden View Locos gang. Both Herrera and Rosales picked Trejo's picture out of a photographic array before trial. A jury convicted Trejo of two counts of attempted voluntary manslaughter, as a lesser included offense of attempted murder, and two counts of assault with a firearm. The jury found that Trejo had personally used and fired a gun in the commission of the attempted voluntary manslaughter (Pen. Code,

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