(Super. Ct. No. CRF03243)
The opinion of the court was delivered by: Hull , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the United States Court of Appeals for the Ninth Circuit ruled that defendant Benny Leon, Jr.'s 11-year upper term state prison sentence for voluntary manslaughter (Pen. Code § 192, subd. (a); statutory references that follow are to the Penal Code unless otherwise stated) had resulted from prejudicial Blakely error (Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)), the trial court modified the sentence from 11 years to the middle term of six years. The People appeal contending the trial court erred in believing the federal courts had curtailed its discretion to re-impose an upper term. We remand for resentencing.
Defendant has requested that we take judicial notice of our opinion in his direct appeal, case No. C047003. In response, we ordered the appellate record from that case incorporated by reference into the present record.
Our statement of facts is taken from our opinion in the direct appeal.
Defendant and the victim, Rosalie Reyes, lived together in a Marysville apartment at the time of the offense. On the evening of April 2, 2003, their acquaintance, Antonio L., accompanied them to a home on Highway 113. While there, Antonio overheard Reyes tell defendant something about money he had borrowed from her. Defendant left. Ten minutes later, defendant telephoned Antonio and informed him that defendant would not be able to return to pick them up because "some group of gangbangers confronted him about something."
Approximately 40 minutes after defendant departed, Amber M. drove Antonio and Reyes back to defendant's apartment. The trio arrived around 1:00 a.m., got out of the car and approached the door. Reyes, who apparently had no key, knocked on the apartment door but received no answer. Reyes began "kicking, knocking, cussing," and yelling at the door. There was still no answer, so Reyes moved to a window where she knocked and yelled some more. Reyes then placed a call on Amber's cellular telephone. Antonio heard a telephone ringing inside the apartment. Amber overheard Reyes say into the phone "[o]pen the front door." Then Reyes returned the phone to Amber. Antonio heard footsteps inside walking toward the door.
Defendant opened the door, looked outside, saw Amber and nodded at her. Defendant told Reyes to "[g]et the 'F' in here" as if he were trying to hurry her. He also said something to the effect she was making too much noise. As Reyes started into the apartment, defendant nudged her into the doorjamb and a shot was fired.
Reyes fell to the floor and defendant reached down to pick her up. Defendant told Reyes to get up and to stop "playing around." He was screaming and hysterical and exclaimed that he had shot her. While holding Reyes in his arms, defendant said, "[d]on't die. I love you. I'll change."
Antonio entered the house, grabbed a telephone and called 911. Then he picked up a handgun from the floor and threw it over a fence. Police later recovered the handgun.
The bullet from the single gunshot struck Reyes in the neck and she died as a result of the wound. The gun had been fired from a distance of zero to six inches. A firearms expert testified at trial that the weapon used by defendant had a trigger pull of 11.5 to 12 pounds, whereas a typical firearm has a trigger pull of three to seven pounds. The handgun was in working order at the time.
A jury acquitted defendant of first degree murder while lying in wait (§§ 187, 190.2, subd. (a)(15)) and second degree murder, convicted him of voluntary manslaughter, and found that he used a firearm in ...