People v. Zacarias CA4/3

── People v. Zacarias CA4/3 ── Court: California Court of Appeal Date: May 08, 2026 Category: General Filed 5/8/26 P. v. Zacarias CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E084610 v. (Super.Ct.No. RIF1903932) OSVALDO ZACARIAS, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge. Affirmed with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. 1  INTRODUCTION Defendant Osvaldo Zacarias snuck into his wife’s car while she was at work, then shot and killed her from the back seat as she drove out of the parking lot at the end of her shift. During the incident, Zacarias also shot and injured a coworker who tried to come to his wife’s aid. A jury found Zacarias guilty of one count of attempted murder (Pen. Code, §§ 187, subd. (a), 6641) and one count of first degree murder with a true finding on the lying-in-wait special circumstance allegation (§§ 187, subd. (a), 190.2, subd. (a)(15)). The jury also found true that he personally and intentionally discharged a firearm and caused great bodily injury during the commission of both counts. (§ 12022.53, subd. (d).) The trial court sentenced Zacarias to life without the possibility of parole plus 96 years to life, which included three five-year prior serious felony enhancements. (§ 667, subd. (a).) On appeal, Zacarias argues: (1) the trial court erred by failing to instruct the jury on the “heat of passion” theory of attempted voluntary manslaughter (§ 192, subd. (a)); (2) the lying-in-wait special circumstance is not supported by substantial evidence; and (3) one of the three prior serious felony enhancements should be vacated because the underlying conviction was tried in the same case as one of the other two underlying convictions and therefore does not qualify as a separate conviction within the meaning of section 667, subdivision (a). We agree with the last contention only. We therefore vacate one of the prior serious felony enhancements but otherwise affirm the judgment. 1 Unlabeled statutory citations refer to the Penal Code. 2  BACKGROUND A. Prosecution’s Evidence Zacarias and his wife, Judy Zacarias,2 were married for 33 years and had six children together, all between the ages of 15 and 25. In May 2019, Judy filed for divorce, and in August of that same year, Zacarias rented an apartment. The shootings occurred at approximately 4:00 a.m. on September 23, 2019, just after Judy completed her night shift at a warehouse in Moreno Valley. At trial, the People presented excerpts of Zacarias’s phone records, which showed that in the 24 hours leading up to the shooting he was frequently calling and texting his wife and procuring a gun. Shortly before 6:00 a.m. on September 22, 2019, Zacarias call