Filed 5/12/14 P. v. Pacheco CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063907

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS250860)

BRIAN CURTIS PACHECO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Ana L.

Espana, Judge. Affirmed in part and reversed in part with directions.

         Arthur Martin, under appointment by the Court of Appeal for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony

Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Brian Curtis Pacheco guilty of seven counts. In count 1, he was

found guilty of willful, deliberate and premeditated attempted murder (Pen. Code,1

§§ 664, 187, subd. (a), 189) with enhancements: personal use of a handgun (§ 12022.5,

subd. (a)), personal use of a semiautomatic handgun (§ 12022.53, subd. (b)), intentional

and personal discharge of a semiautomatic handgun (§ 12022.53, subd. (c)), causing great

bodily injury (§ 12022.53, subd. (d)) and acting for the benefit of a criminal street gang

(§ 186.22, subd. (b)(1)). In count 2, he was found guilty of assault with a semiautomatic

handgun (§ 245, subd. (b)), with personal use of a handgun (§ 12022.5, subd. (a)) and

acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In count 3, he

was found guilty of kidnapping for robbery (§ 209, subd. (b)(1)) with personal use of a

handgun (§ 12022.5, subd. (a)) and personal use of a semiautomatic handgun

(§ 12022.53, subd. (b)). In count 4, he was found guilty of carjacking (§ 215, subd. (a))

with personal use of a handgun (§ 12022.5, subd. (a)) and personal use of a

semiautomatic handgun (§ 12022.53, subd. (b)). In count 5, he was found guilty of

kidnapping (§ 207, subd. (a)) with personal use of a handgun (§ 12022.5, subd. (a)) and

personal use of a semiautomatic handgun (§ 12022.53, subd. (b)). In count 6, he was

found guilty of robbery (§ 211) with personal use of a handgun (§ 12022.5, subd. (a)) and

personal use of a semiautomatic handgun (§ 12022.53, subd. (b)). In count 7, he was

found guilty of assault with a semiautomatic firearm (§ 245, subd. (b)).




1      All further statutory references are to the Penal Code.
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       The court sentenced Pacheco to prison for 40 years to life, plus life in prison with

possibility of parole, plus 10 years. 15 years to life for willful, deliberate and

premeditated attempted murder plus 25 years to life for causing great bodily injury (count

1) and life with possibility of parole for kidnapping for robbery plus 10 years for personal

use of a semiautomatic handgun (count 3). The court stayed sentence on the remaining

counts and enhancements.

       Pacheco appeals, contending: (1) there is not substantial evidence that he shot

Moreno with a semiautomatic handgun, so his conviction of assault with a semiautomatic

handgun (count 2) must be modified to reflect a conviction of the lesser included offense

of assault with a firearm (§ 245, subd. (a)(2)) and (2) the kidnapping conviction (count 5)

must be reversed as a lesser included offense of kidnapping for robbery (count 3). The

first contention is without merit and respondent properly concedes the second point.

                  ASSAULT WITH A SEMIAUTOMATIC HANDGUN
                                 (COUNT 2)

       At about 12:45 a.m. on November 7, 2009, Pacheco shot Benjamin Moreno in the

back with a handgun. A .40 caliber shell casing was found in the parking lot where the

shooting took place. A police officer testified that the fact that the casing had been

ejected meant that the gun was a semiautomatic handgun. Another police officer testified

that the size of the bullet hole in Moreno's back indicated that he had been shot with a

large caliber weapon. This constitutes substantial evidence that Pacheco shot Moreno

with a semiautomatic handgun.




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           KIDNAPPING (COUNT 5) AS A LESSER INCLUDED OFFENSE
                 OF KIDNAPPING FOR ROBBERY (COUNT 3)

       Shortly before 2:00 a.m. on November 22, 2009, Alejandro Torres parked his

truck at a 7-11 store in Chula Vista. He turned off the engine and left the keys in the

ignition. He remained in the truck, alternately texting on his phone and looking around.

Pacheco approached, knocked on the truck's window and asked for a dollar. Torres said

he did not have a dollar. Pacheco opened the truck's door and pulled out a 9 millimeter

semiautomatic handgun. He pulled the slide back to load a bullet into the chamber.

Torres heard a metallic click. Pacheco told Torres to move over. Torres complied and

Pacheco got into the truck. Pacheco told Torres not to do anything stupid. Pacheco

pointed the gun at Torres and kept it there. Pacheco started the truck and drove toward

the freeway. When they were on the freeway on ramp, Pacheco asked for Torres's wallet

and phone, and asked if he had jewelry. Torres handed over his wallet and phone and

said he did not have any jewelry. Torres told Pacheco to take whatever he wished and

drop him off anywhere. Pacheco let Torres out of the truck. Torres ran to a store where

he called the police.

       When two charged offenses are based on the same criminal act or course of

conduct, and, according to the statutory elements test, one offense is a lesser included

offense of the other, the defendant cannot be convicted of both offenses. (People v. Reed

(2006) 38 Cal.4th 1224, 1226, 1231.) In such a case, the conviction of the lesser offense

must be reversed. (People v. Medina (2007) 41 Cal.4th 685, 702.) Kidnapping is a lesser

included offense of kidnapping for robbery. (§§ 207, subd. (a) ["Every person who


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forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or

arrests any person in this state, and carries the person into another country, state, or

county, or into another part of the same county, is guilty of kidnapping"], 209, subd.

(b)(1) ["Any person who kidnaps or carries away any individual to commit

robbery . . . shall be punished by imprisonment in the state prison for life with the

possibility of parole"].) Here, the kidnapping and the kidnapping for robbery were based

on the same course of conduct. Thus, the kidnapping conviction must be reversed.

                                       DISPOSITION

       The conviction of kidnapping (§ 207, subd. (a)) with personal use of a handgun

(§ 12022.5, subd. (a)) and personal use of a semiautomatic handgun (§ 12022.53, subd.

(b)) (count 5) is reversed. In all other respects, the judgment is affirmed. The trial court

is directed to prepare an amended abstract of judgment and forward it to the Department

of Corrections and Rehabilitation.



                                                                         BENKE, Acting P. J.

WE CONCUR:



                   McDONALD, J.



                    O'ROURKE, J.




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