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People v. Acevedo2/27/2002
I.
Appellant Marcos Acevedo was charged in a four-count information with attempted murder (Pen. Code, § 664, subd. (a), 187, subd. (a)); assault with a firearm (§ 245, subd. (a)(2)); shooting at an inhabited dwelling (§ 246); and shooting from a vehicle at a person (§ 12034, subd. (c)). It was further alleged that he inflicted great bodily injury, personally and intentionally discharged a firearm causing great bodily injury, and personally used a firearm. (§ 12022.5, subd. (a)(1), 12022.53, subds. (d), (e), 12022.7, subd. (a)). He pled not guilty to all charges.
During trial, the court granted appellant's motion for acquittal on count 1, attempted murder. The counts were then renumbered, and the jury ultimately returned guilty verdicts on the assault with a firearm charge (count 1), shooting at an inhabited dwelling (count 2), and shooting from a vehicle at a person (count 3). The jury further found the great bodily injury allegations true in all three counts, the personal use of a firearm true in count 1, and the personal discharge of weapon causing great bodily injury true in count 3, but found not true the personal discharge of weapon causing great bodily injury in count 2.
Appellant filed a motion for new trial, and the trial court found insufficient evidence to support the conviction on count 2, shooting at an inhabited dwelling. The trial court sentenced appellant to the mid-term of five years on count 3 (shooting from a vehicle at a person), with an additional 25 year to life term for the section 12022.53 enhancement. The section 12022.7, subdivision (a) enhancement was stayed pursuant to section 654. The court imposed a three-year term on the assault with a firearm conviction to run concurrent to the term on count 3, with enhancements stayed.
Appellant timely appeals and claims: (1) the trial court erred in failing to sua sponte instruct regarding accomplice testimony; (2) the trial court erred in instructing the jury pursuant to CALJIC No. 2.11.5 regarding consideration of why a person was or was not being prosecuted; (3) the trial court erred in failing to sua sponte instruct on the offense of permitting a shooting from a motor vehicle; and (4) his sentence constitutes cruel and unusual punishment under the circumstances of this case. We conclude appellant's first two claims of error have merit and that it is reasonably probable the instructional errors affected the verdict. Accordingly, we reverse.
II. FACTS
A. Prosecution Case
Appellant has a child with Clarissa Perez, who lives in a house with her mother, Elizabeth Cervantes, on West Tomah Street in Porterville. Cervantes's boyfriend, Antonio Ramos, periodically lives with them. In the afternoon of October 10, 1999, Ramos was drinking beer with his friend Jesus Sanchez in front of the house and appellant drove up and down the street in a white car throwing beer cans and yelling obscenities. Sanchez got mad and threw a baseball bat at the car.
Ramos testified that at approximately 10:00 p.m. that same evening, he was shot in the foot as he was walking in the yard toward the house. Ramos had heard a vehicle driving up fast, and saw appellant in the front passenger seat of the white car. Ramos saw three people in the car but could only identify appellant. Appellant fired three shots, one of which hit Ramos in the foot. Another person standing in the front yard at the time of the shooting, Jesus Sanchez, testified that it was too dark to be able to tell who was in the car.
Alicia Padron, a neighbor, had seen appellant driving a white vehicle in the neighborhood earlier in the day on October 10. At approximately 10:00 p.m. of
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