P. v. Ahn

P. v. Ahn

Filed 2/24/10 P. v. Ahn CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. JUNG JONATHAN AHN, Defendant and Appellant.

B217127 (Los Angeles County Super. Ct. No. KA084453)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

Jung Jonathan Ahn appeals from the judgment entered following a jury trial in which he was convicted of eight counts of first degree robbery of a transit operator for hire, counts 1-5, 8, 9, 11 (Pen. Code, 211) and one count of second degree robbery, count 13 (Pen. Code, 211) with the true finding that during the commission of these crimes, he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b). He was sentenced to prison for 51 years.^[1]

The evidence at trial established that in July and August 2008, appellant, at gunpoint, robbed eight individuals of personal belongings, including money, credit cards, jewelry, cell phones, car keys, and GPS systems, while the individuals were performing their duties as a taxi cab driver. Appellant robbed a ninth individual who was not a taxi cab driver, but who had agreed to give appellant a ride as a favor.

Appellants sentence of 51 years consisted of in count 1, the middle term of four years, plus ten years for the firearm enhancement. As to counts 2, 3, 4, 5, 8, 9, and 11, he was sentenced to one-third of the middle term, which was 16 months, plus one-third of the firearm enhancement, which was three years and four months. As to count 13, appellant was sentenced to one-third the middle term, which was one year, plus one-third of the firearm enhancement, which was three years and four months. The sentences were ordered to be served consecutively in that each of the counts involved separate acts of violence on different dates.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On November 20, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On December 29, 2009, he filed a supplemental letter brief claiming he was receiving ineffective assistance of counsel based on his counsels inability to find any arguable issues. Appellant also claimed that some of the victims at trial were not credible. He disputed the sufficiency of evidence with regard to the testimony of one victim as to whether the victim was in fear and whether the property was taken by force. Appellant also challenged the sufficiency of evidence identifying him as the perpetrator, describing the weapon used, and testimony of one of the victims as to whether the victim was performing his duties as the driver of a taxi cab at the time he was robbed. Appellant also claimed his trial attorney was inadequate in failing to ask for a lineup, failing to request a pinpoint instruction[] regarding identification testimony, and allowing evidence that items similar to those stolen in the robberies were listed on craigslist by appellant. Appellant also claimed his counsel was ineffective by not attempting to suppress evidence found at his home and not challenging the fingerprint evidence. Appellant also faulted his defense counsels strategy.

We have examined the entire record and are satisfied that no arguable issues exist. We review the evidence in the light most favorable to the respondent. (People v. Johnson (1980) 26 Cal.3d 557, 577.) In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Further, appellant has failed to demonstrate ineffective assistance of counsel (see Strickland v. Washington (1984) 466 U.S. 668) or substantial evidence of incompetence. (See People v. Rogers (2006) 39 Cal.4th 826, 846.) The decision regarding which witnesses to call and what evidence to submit at trial are matters within the discretion of trial counsel and rarely implicate ineffective assistance of counsel. (See People v. McDermott (2002) 28 Cal.4th 946, 992.) Additionally, defense counsels tactical decisions during trial do not amount to ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) To the extent appellant argues that one of the victims of the first degree robbery conviction was not a taxi driver, Penal Code section 212.5, subdivision (a) states in pertinent part, Every robbery of any person who is performing his or her duties as an operator of any . . . taxicab . . . or other vehicle . . . used for the transportation of persons for hire . . . is robbery of the first degree. The evidence established that each victim was performing duties as described in the subject code section. Each robbery occurred on a separate occasion. Further, issues cognizable on appeal are confined to matters contained in the appellate record. (See People v. Pearson (1969) 70 Cal.2d 218, 221-222.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P.J.

We concur:

WILLHITE, J.

MANELLA, J.

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^[1] Four additional counts of first degree robbery, counts 6, 7, 10, and 12, were dismissed pursuant to Penal Code section 1118.1.