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People v. Frausto

December 28, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAVIER FRAUSTO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. As modified, affirmed. (Los Angeles County Super. Ct. No. BA327495).

The opinion of the court was delivered by: Rubin, Acting P. J.

CERTIFIED FOR PUBLICATION

Defendant Javier Frausto appeals from his conviction of first degree murder and two counts of attempted premeditated murder. He contends insufficient evidence supports jury findings that, as to the attempted murder counts, he personally discharged a firearm causing great bodily injury or death. We reject defendant's argument but agree with him, as do the People, that the trial court erred in imposing three separate prior conviction enhancements and in calculating his presentence custody credits. We order the abstract of judgment amended and, as amended, affirm the judgment.

PROCEDURAL BACKGROUND

Defendant was charged with first degree murder of Lynette Lucero and attempted premeditated murders of Jimmy Sigala and Julio Castro. The information also alleged as to each count the following enhancements:

* Personal use and personal discharge of a firearm (Pen. Code, § 12022.53, subds. (b), (c)).*fn1

* Personal discharge of a firearm causing great bodily injury (GBI) or death to a nonaccomplice (§ 12022.53, subd. (d) (hereafter § 12022.53(d))).

* Three prior convictions pursuant to section 667, subdivisions (a) through (i).

By the time the case was submitted to the jury, the verdicts differed from the information in two respects, one material, the other not. Immaterially, the section 12022.53, subdivision (b) enhancement for personal use of a firearm was dropped, the prosecutor apparently content with arguing personal discharge of a firearm and personal discharge causing death/GBI, the more serious allegations. Of great significance, though, was that the verdict language for the death/GBI enhancement listed as to each count, "great bodily injury and death to Lynette Lucero," the murder victim. On the face of the verdict form, therefore, it was the death of Lucero that formed the basis for the enhancement in the attempted murder counts involving victims Sigala and Castro.*fn2 The jury found true the death/GBI enhancements as to each count. It also found true the lesser personal discharge enhancements. In a bifurcated proceeding, the trial court found true the prior conviction allegations.

Defendant was sentenced to a total of 214 years to life in prison, plus a consecutive term of 15 years, comprised of 5 years for each of the three prior convictions. The sentence included a separate, consecutive 25 years-to-life term on each count pursuant to section 12022.53(d). Defendant was given 464 days of presentence custody credits.

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that in July 2007, victims Lucero and Sigala were next door neighbors on Alice Street in the Cypress Park area of Los Angeles; victim Castro was Sigala's daughter's boyfriend; Castro's brother, Ernesto, lived around the corner. Defendant lived about five blocks away.

On the night of July 4, 2007, Castro, Sigala, and Lucero were in front of Sigala's home watching fireworks. At about 1:00 a.m., Jim Guzman was walking through the alley behind Lucero's home toward a party when he saw defendant coming in his direction and carrying a gun wrapped in a T-shirt. Guzman knew defendant, primarily through one of defendant's brothers. Shortly thereafter, Lucero was fatally shot, and Sigala and Castro were ...


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