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People v. Pina

Court of Appeal of California, Second Appellate District, Division Two

March 28, 2013, Opinion Filed

B235751

Opinion

Defendants Jorge Pina (Pina) and Justin Carlin (Carlin) (collectively defendants) appeal from their convictions of attempted murder (Pina only) and assault by means likely to produce great bodily injury (both defendants). Defendants challenge the sufficiency of the evidence to support a finding that the victim suffered great bodily injury. They also challenge the finding that the crimes were gang related, asserting that the "mirroring" hypothetical facts presented to the expert witness for his opinion were improper because they too closely resembled  [*2] the facts in evidence. Pina and respondent also point to errors in the amended abstract of judgment and seek an order correcting them. We agree that the amended abstract contains errors and we order the superior court to issue a corrected abstract of judgment. However, we conclude that substantial evidence supported a finding of great bodily injury and that the hypothetical question was proper. We thus reject defendants' remaining contentions and affirm the judgments.

BACKGROUND

Procedural history

Defendants were charged in count 1 of an amended information with the willful, deliberate and premeditated attempted murder of Eileen Vargas (Vargas), in violation of Penal Code sections 664 and 187, subdivision (a).1 It was further alleged as to count 1 that a principal personally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1).2 In count 3, defendants were charged with an assault against Vargas by means likely to produce great bodily injury, in violation of former section 245, subdivision (a)(1).3 It was further alleged that Pina personally used a firearm within the meaning of section 12022.5, subdivision (a). As to both counts the amended  [*3] information alleged that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). In addition, as to both counts, it was alleged that defendants personally inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a).

The amended information alleged that Pina had three prior felony convictions and Carlin two prior felony convictions, for which they served prison terms within the meaning  [*4] of section 667.5, subdivision (b). The trial court granted motions to bifurcate trial on the prior convictions and prison terms.

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2013 Cal. App. Unpub. LEXIS 2293 *; 2013 WL 1276438

THE PEOPLE, Plaintiff and Respondent, v. JORGE PINA et al., Defendants and Appellants.

Notice: NOT TO BE PUBLISHED IN 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 THE PURPOSES OF RULE 8.1115.

Subsequent History: Review denied by People v. Pina, 2013 Cal. LEXIS 5030 (Cal., June 12, 2013)

Prior History:  [*1] APPEALS from judgments of the Superior Court of Los Angeles County, No. BA360819, Michael E. Pastor and Gail Ruderman Feuer, Judges.

Disposition: Affirmed with instructions.

CORE TERMS

gang, gang member, great bodily injury, hypothetical question, trial court, hypothetical, enhancement, injuries, questions, firearm, Street, disrespect, contends, bruises, substantial evidence, amended abstract, prison term, consecutive, territory, window, expert opinion, gang related, street gang, convictions, defendants', corrected, sentence, assault, swollen, talking