(Super. Ct. No. SF106858A)
The opinion of the court was delivered by: Cantil-sakauye, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Daniel Ramiro Barrera was charged with murder (count 1, Pen. Code, § 187),*fn1 carrying a concealed firearm as a gang member (count 2, § 12025, subd. (b)(3)), carrying a loaded firearm while an active participant in a criminal street gang (count 3, § 12031, subd. (a)(2)(C)), and street terrorism (count 4, § 186.22, subd. (a)). The information further alleged enhancements for intentionally and personally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)), committing the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)), and personally using a firearm in the commission of the offense (§ 12022.5, subd. (a)).
The jury convicted defendant of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), and sustained the firearm enhancements. The trial court granted the People's motion to dismiss the section 12022.53, subdivision (d) enhancement because it is inapplicable to voluntary manslaughter. Defendant was sentenced to 21 years in prison, consisting of an upper term of 11 years for voluntary manslaughter plus an upper term of 10 years for the personal use of a firearm enhancement.
On appeal, defendant contends the court violated his Sixth Amendment right to present evidence, and raises various challenges to his upper term sentences. We affirm.
One evening in December 2007, 19-year-old Daniel Guzman (Daniel) and his friends Andre Becerra and "Buzo" were at the home of Daniel's brother Jose Guzman (Jose).*fn2 Daniel told Jose that he and his friends were leaving to meet his girlfriend, and would be right back.
Jose left the house when Daniel did not return, and heard about 10 gunshots coming from the area around the canal to the east. Jose phoned Daniel and his call was sent to voicemail, which was unusual. He then called Becerra, who said Daniel had been shot.
Jose got in his car and drove towards the gun shots. Approaching a nearby intersection, he saw Becerra run and hide behind a fence. Becerra jumped in the car, and they drove to a dead-end street going east towards the canal.
Daniel was lying on the road, and two people were running into a house. Jose and Becerra grabbed Daniel and put him in the car. According to Jose, neither Daniel nor Becerra had a gun.
Daniel died from a single gunshot wound.
That night at around 9:00 or 10:00 p.m. defendant was in his Lexus parked in front of his house. David Lopez came over and they stayed in the car, where they smoked a blunt*fn3 and watched a kung fu movie.
According to Lopez, about 40 minutes later, two people approached defendant's car from the canal. One of the two people struck a window on the Lexus, which made a sound like a gunshot. Lopez ducked down in the front passenger seat. He then heard gunshots coming from all around the car.
After the noise subsided, defendant told him to run. As the two ran into defendant's house, they passed a person lying on the street--the same person who hit the window of defendant's car. Defendant said, "That's what the fuck you get for, you know, coming over here[.]" Lopez later testified that defendant said those words or their equivalent after they were in the house. Once inside the house, defendant told his mother he had shot someone. Defendant had a gun in his hand, which he showed to Lopez about four minutes after they entered the house. Lopez admitted telling a detective that he saw defendant reload the gun.
Lopez also told a detective that defendant got out of the car and started "shooting at 'em," firing five or six shots. About defendant, Lopez said to the detective: ...