Metropolitan News-Enterprise


Wednesday, April 2, 2008


Page 3


C.A. Affirms Conviction in San Pedro Killing, Orders New Sentencing




The Court of Appeal for this district yesterday affirmed the conviction of a man who killed a romantic rival in San Pedro in 2001, but sent his case back to the Los Angeles Superior Court for resentencing.

Div. Seven, in an unpublished opinion by Justice Laurie Zelon, rejected Jorge Evaristo Flores’ claims of prosecutorial misconduct and instructional error. The panel accepted the defense argument that the sentence of 69 years to life in prison must be reconsidered because the judge relied on facts not found by the jury, but the ruling does not preclude the imposition of a similar sentence on remand.

Flores was convicted of killing Giovanni Perez at another person’s surprise backyard birthday party. Both Flores and Perez had dated, and had children with, Delilah Smith, who attended the party with Perez.

Police learned that Flores had attended the party with his brother, and that Flores was a member of the Rancho San Pedro gang. Smith told police that Flores was carrying a gun, that he spotted Perez, that she and Perez tried to run to their car, and that Perez was shot several times as they ran.

The day after the shooting, she told police, Flores told her he would take care of her children, that he knew what he did was wrong, and that he intended to turn himself in, although he subsequently went to San Diego and then to Mexico. Flores’ brother was arrested and charged, and later pled guilty to murder.

At trial, Smith and other witnesses testified contrary to their statements to police, but their prior comments were introduced in evidence as prior inconsistent statements.

Flores testified that it was Smith who told him about the party, but she did not tell him that Perez would be there. He denied having brought a gun to the party, but said someone there gave him a gun and he held on to it for his own protection.

Perez saw him, run toward him, and pulled out a gun, Flores testified, claiming he fired in self-defense.

On cross-examination, Flores acknowledged that he knew his brother had been arrested, and that he had not come forward at that time to claim that Perez was armed.

Defense counsel moved for a mistrial, saying the prosecutor had improperly inferred that because the defendant’s brother had pled guilty, the defendant had to be guilty as well. Judge James Pierce gave a curative instruction, but denied a mistrial.

Jurors found Flores guilty of murder in the first degree and assault with a semiautomatic firearm, with findings that he personally used the firearm and discharged it, causing death.

Pierce calculated the 69-year minimum term by taking the basic minimum for first degree murder—25 years—and adding 25 years under the “10-20-Life” law, the nine-year upper term on the assault count, and the upper-term 10-year firearm enhancement to the assault term.

Zelon, writing for the Court of Appeal, agreed that the cross-examination questions were improper, but said there was no prejudice because the jury was instructed that they did not constitute evidence, the proof of Flores’ guilt was “overwhelming,” and there was other evidence at Flores’ trial implicating his brother.

The justice said the defense was, however, partially correct in its attack on the sentence.

Defense counsel argued that both the nine-year term for assault and the 10-year enhancement violated Cunningham v. California (2007) 127 S.Ct. 856, which held that the state’s Determinate Sentencing Law is unconstitutional to the extent it allows the judge to impose an upper-term sentence based on facts, other than prior convictions, that have not been found by a jury or admitted by the defendant.

Zelon agreed as to the enhancement, but disagreed as to the underlying nine-year term.

The underlying term, the justice explained, satisfies Cunningham because it was based in part on Flores’ prior conviction for domestic violence against Smith. The fact that it was also based on other factors, Zelon said, is irrelevant under the state high court’s clarification of Cunningham in People v. Black (2007) 41 Cal.4th 799.

As to the gun enhancement, however, the justice agreed that the judge erred in imposing the upper term based on his nonjury finding that the crime involved a high degree of violence, and that the domestic violence conviction could not be used to increase both the base term and the enhancement.

On remand, however, the judge may re-impose the 10-year enhancement, if he chooses, on the basis of other prior convictions, Zelon said.

The case is People v. Flores, B191682. 


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