P. v. Arellano
Filed 7/9/13 P.
v. Arellano CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAMIRO RIVERA ARELLANO,
Defendant and Appellant.
B244549
(Los Angeles County
Super. Ct. No. VA123510)
APPEAL from
a judgment of the Superior Court of
County. Robert J. Higa,
Judge. Affirmed.
Tracy A. Rogers, under
appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Respondent.
__________________________
Defendant Ramiro Rivera Arellano appeals from his
conviction of second degree robbery. Following our independent review of the
record pursuant to People v. Wende
(1979) 25 Cal.3d 436, 441 (Wende),
we affirm.
In the early morning hours of
January 2, 2012, Carlos Portillo walked out of the side door of the Lido
Nightclub on Long Beach Boulevard in South Gate and was accosted by a man who
held a gun to his head, then grabbed the thick gold chain from Portillo’s neck
and ran away. Miguel Mota did not see
the robbery, but saw a man holding a gun running from the scene. When Mota saw defendant at the Lido a few weeks
later, he flagged down a police officer and told him that defendant was the
armed man Mota had seen running away on January 2.
Defendant was charged by
information with second degree robbery; a firearm use enhancement was also
alleged (Pen. Code, § 12022.53. subd. (b).)
Portillo and Mota testified at
defendant’s jury trial. Although
Portillo identified defendant as his assailant at trial, he admitted being
unable identify defendant from a photographic lineup shown to him by detectives
on January 25. Mota identified defendant
as the armed man he saw running from the same photographic lineup and at
trial The police tape recorded an
interview with defendant in Spanish; an English translation of the interview,
in which defendant admits committing the robbery, was read to the jury. A recording of the robbery taken by the
Lido’s surveillance cameras was played for the jury.
A defense
witness testified that when she reviewed the surveillance video in late
February or early March 2012, she noticed that the person in the video tape had
a protruding belly, which defendant did not.
Defendant’s girl friend, Lorena Davila, testified that she was with
defendant at the Lido the night Portillo was robbed. Davila had never seen defendant with a gun
and he did not have one that night. When
Davila and defendant left the Lido at about 1:45 a.m., defendant did not wait
in front of the Lido while Davila walked alone to the Lido parking lot and then
circled the club in her black SUV (as Mota testified he observed); rather, they
walked together to the Lido parking lot and defendant drove them home in
Davila’s SUV. Davila had reviewed the
recording taken by the Lido surveillance cameras and the person seen robbing
Portillo in the recording was not defendant.
After the
jury found defendant guilty of robbery and found true the firearm enhancement, defendant was sentenced to a total of 12
years in prison comprised of the two year low term for robbery, plus a
consecutive 10 years for the section 12022.53, subdivision (b) gun use
enhancement. He was ordered to make
restitution to Portillo of $5,000, based on Portillo’s testimony that the
stolen necklace had a value of that amount.
Defendant timely appealed.
We appointed
appeal. After examination of the record,
appointed counsel filed an opening brief which contained an acknowledgment that
she had been unable to find any arguable issues and requested that we
independently review the record pursuant to Wende,
supra, 25 Cal.3d 436. We
advised defendant that he had 30 days within which to personally submit any
to consider.
Defendant timely filed a document
captioned: “Personal Arguments And
Appeal Contentions,†in which he set forth the following contentions: (1) he received ineffective assistance of
counsel; (2) the judgment was not supported by substantial evidence;
(3) there was juror misconduct; and (4) there was sentencing error. Regarding effective assistance of counsel,
defendant argues his attorney did not inform him of unspecified important
issues, was not prepared to start trial, and did not look into unspecified
exculpatory aspects of the case. The
record does not support these arguments and they may be more appropriately addressed
in a petition for habeas corpus.
Regarding the sufficiency of the evidence, defendant argues Portillo
identified someone other than defendant as his assailant from the photographic
lineup and no weapon was ever found.
Regarding juror misconduct, defendant argues that jurors were sleeping
during the trial. Finally,
notwithstanding that the trial court imposed the low term, defendant argues it
did not consider certain mitigating factors in imposing sentence.
We have examined the entire record
and are satisfied that appointed counsel has fully complied with her
responsibilities and that no arguable
issues exist. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment
is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
name="_ftn1" title="">[1] All
future undesignated statutory references are to the Penal Code.
