P. v. Nodarse
Filed 7/29/08 P. v. Nodarse CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. ALEXANDER NODARSE, Defendant and Appellant. | E044144 (Super.Ct.No. SWF013785) OPINION |
APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Alex Nodarse, defendant, appeals from a conviction for assault with a deadly weapon following a jury trial.
Background
A dispute arose between defendant and a coworker named Ernesto Hurtado regarding a $10 debt owed by Hurtado to defendant. On October 6, 2005, defendant and Hurtado agreed to meet after work at a field near their workplace to fight it out. Defendant and Hurtado arrived in separate cars. Other coworkers showed up at the site to watch the fight. Hurtado approached the defendant, and when he was approximately 50 feet away from the defendant, he noticed defendant had a sweatshirt. Hurtado asked defendant to remove the sweatshirt and defendant complied. Hurtado saw something in defendants waistband.
Hurtado turned and headed back towards the car in which he had come. Hurtado heard shots fired in his direction. He turned and saw defendant had a gun. Hurtado saw a couple of shots ricochet off the ground approximately 10 to 15 feet behind him as he ran. He jumped into his coworkers car and returned to the workplace where the police were contacted and a report was made.
Defendant was charged with one count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(2). It was further alleged that defendant had personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). It was further alleged that defendant had previously served a prison term for a prior conviction (Pen. Code, 667.5, subd. (b)), that he been convicted of a serious felony within the meaning of Penal Code, section 667, subdivision (a), as well as a prior conviction of a serious or violent felony within the meaning of the Three Strikes Law. (Pen. Code, 667, subds. (b)(i).) It was further alleged that the offense was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b).
Following a jury trial, defendant was convicted of the aggravated assault, and the jury found the gun use allegation was true. However, in a bifurcated proceeding, the gang allegation was found not true. Defendant subsequently admitted the truth of the allegations regarding his prior convictions. The prosecutor dismissed the prison prior, and defendant was sentenced to a total term of 10 years in state prison.
Discussion
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, and he has done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record.
Hurtado testified he saw defendant pointing a semiautomatic handgun in his direction and that he heard shots fired when he turned and ran. Several other witnesses saw the confrontation and heard the gunshots. It is the province of the jury to pass on the credibility of witnesses in making factual determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) There was substantial evidence to support the jurys verdict. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
The court did not abuse its discretion in admitting evidence of the 911 tape. (Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224]; People v. Brenn (2007) 152 Cal.App.4th 166, 177.) Nor did it abuse its discretion in ruling on the admissibility of defendants prior conviction as impeachment.
We address points based in defendants supplemental brief. There was no statute of limitations violation respecting his prior convictions. Defendants prior conviction was not so old as to be considered stale for impeachment purposes, and there is no age limitation on the use prior serious felony convictions for sentencing purposes. (See People v. Strong (2001) 87 Cal.App.4th 328, 338-339.)
The record does not reveal any evidence of prosecutorial misconduct relating to witness intimidation and absent an objection this issue has not been preserved for appeal. Defendant was not unduly prejudiced by the late provision of contact information relating to Hurtado. The defense had an opportunity to conduct its investigation and to cross-examine Hurtado at trial. Absent an objection to Hurtado testifying as a sanction for late discovery there was no error. Nor do we find any error in the prosecutions failure to conduct gunshot residue tests on the defendant upon his arrest. The prosecution has no general duty to seek out, obtain and disclose all evidence that might be beneficial to the defense. (People v. Panah (2005) 35 Cal.4th 395, 460.) Here, the evidence would have been merely cumulative of the eyewitness testimony and the defense had full opportunity to cross-examine the investigators on the lack of tests.
The fact that no gun was located does not require reversal of the conviction where eyewitnesses testified that defendant used a gun. The discovery of the casings in the area where defendant was seen firing the shots served as circumstantial evidence that a gun was fired and that defendant fired it. No witnesses observed defendant discarding the gun at the scene so no inference may be drawn from the fact that no gun was found. The fact no gun was found supports an inference defendant took the gun when he left.
We have conducted an independent review of the record and find no arguable issues. Appellant was effectively represented by counsel in the trial court as well as on appeal.
DispositioN
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/McKinster
Acting P. J.
s/Miller
J.
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