P. v. Fajardo
Filed 4/25/13 P. v. Fajardo CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
RICARDO
FAJARDO,
Defendant and Appellant.
B241250
(Los Angeles County
Super. Ct. No. SA077865)
APPEAL from a judgment of the Superior Court of
County, James R. Dabney, Judge. Affirmed.
Paul Stubb, Jr., under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and
Respondent.
Ricardo Fajardo appeals from the
judgment entered following his conviction by jury on three counts of second
degree robbery. (Pen. Code, § 211.)
On November
11, 2008,
around 9:00 p.m., Bryan Beaulieu and two friends were sitting in Beaulieu’s
truck parked outside a Rite Aid in Santa Monica, smoking cigarettes. The parking lot was dimly lit, and there were
no other people or cars around. A man
entered the parking lot and asked them if he could have a cigarette. Beaulieu handed the man a cigarette and a
lighter. The man put the cigarette in
his mouth, lit it, handed the lighter back, took one puff and then threw the
cigarette on the ground. He then pulled
a gun from his waistband, pointed it at Beaulieu and his friends, and demanded
money. They gave him money and a
wallet.
After the man left, Beaulieu moved his
truck to the front of the store and asked the clerk in the store to call the
police. About five minutes later, Santa
Monica Police Officer Coyin Chang arrived.
Beaulieu and his friends showed Officer Chang where they had been
parked. The parking lot was still
empty. When they showed Officer Chang
the parking space they had been in, they saw the barely smoked cigarette on the
ground next to where they had been parked, near their own cigarette butts, and
in the same area where they saw the man drop the cigarette. They recognized it because it was barely
smoked, and there were no other partially smoked cigarettes on the ground. Beaulieu and his friends were uncertain about
the type of cigarette they had been smoking, and Beaulieu’s testimony and
statements to the police were inconsistent.
Beaulieu described the suspect to
Officer Chang as a Hispanic man in his early 20’s, medium build, approximately
six feet tall, with facial hair and wearing a dark grey hoodie and a black and
grey beanie. Beaulieu was not able to
identify appellant as the suspect at either the preliminary hearing or at
trial, testifying at trial that he did not know whether appellant was the suspect.
Officer Chang booked the partially
smoked cigarette into evidence. In June
2011, the state Department of Justice notified Detective Chad Goodwin that the
DNA sample from the partially smoked cigarette matched appellant’s DNA profile. The estimate of the frequency of such a match
was one in one trillion unrelated individuals.
Detective Goodwin arrested appellant
and obtained a DNA sample from him.
Detective Goodwin showed Beaulieu a photographic lineup containing
appellant’s picture, but he was unable to identify appellant and instead
identified someone else as the suspect.
Appellant was charged by information
with three counts of second degree robbery.
The information further alleged that appellant personally used a firearm
pursuant to sections 12022.53, subdivision (b), 1203.06, subdivision (a)(1),
and 12022.5, subdivision (a). Appellant
entered not guilty pleas and denied the special allegations. The jury found appellant guilty of all three
counts and found the special allegations to be true.
Appellant filed a motion for new
trial, which the trial court heard and denied.
The court sentenced appellant on count 1 to the high term of 5 years,
plus 10 years for the section 12022.53, subdivision (b) firearm enhancement,
for a total of 15 years, with the sentences on counts 2 and 3 to be run
concurrently. Appellant filed a timely
notice of appeal.
After review of the record,
appellant’s court-appointed counsel filed an opening brief asking this court to
review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On October 29,
2012, we
advised appellant that he had 30 days within which to submit any contentions or
issues that he wished us to consider. No
response has been received to date.
We have examined the entire record and
are satisfied that no arguable issues exist, and that appellant has, by virtue
of counsel’s 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
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code.
