P. v. Nunez

Filed 8/15/08 P. v. Nunez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:^*

Israel Nunez (defendant) appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of second degree robbery (Pen. Code, 211) (counts 1, 2); two counts of attempted murder ( 664/187) (counts 3, 4); two counts of assault with a firearm ( 245, subd. (a)(2)) (counts 5, 6); and one count of shooting at an occupied motor vehicle ( 246) (count 7). The jury found true various firearm-use enhancement allegations. These alleged both personal use and use by a principal with respect to counts 1 through 6. ( 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c).) The jury found true the allegations that the attempted murders were committed willfully, deliberately, and with premeditation.

The trial court sentenced defendant to life in prison for the attempted murders in counts 3 and 4. The court added 20 consecutive years for the firearm enhancement pursuant to section 12022.53, subdivision (c) in count 3 and 20 years for the same enhancement in count 4. On count 1, the trial court imposed the midterm of three years and an enhancement of 20 years pursuant to section 12022.53, subdivision (c). On count 2, the trial court imposed one-third the midterm, or one year, and one-third the midterm, or six years eight months, on the enhancement allegation under section 12022.53, subdivision (c). Punishment on counts 5, 6, and 7 was stayed pursuant to section 654. The court ordered all determinate sentences to be served consecutive to and prior to the life sentences. Defendants total sentence consists of two life terms and 70 years 8 months.

We appointed counsel to represent defendant on this appeal. After examination of the record, counsel filed an Opening Brief containing an acknowledgment that he had been unable to find any arguable issues. On December 7, 2007, we advised defendant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On December 18, 2007, we denied defendants request for new appointed counsel. On January 7, 2008, we granted defendants request for augmentation of the record to include jury voir dire. On February 25, 2008, we denied defendants second request for new appointed counsel. On March 7, 2008, we granted defendant an extension of time to April 24, 2008, to file a supplemental brief. On April 21, 2008, we granted defendant an extension of time until May 23, 2008, to file a supplemental brief. On May 23, 2008, we denied defendants request for a further extension. No supplemental brief has been received to date.

The record shows that two men robbed an El Rancho Market in Sylmar on December 23, 2005. The two men approached the store and covered their faces with bandanas as they entered. Both men carried guns and pointed them at the two clerks working in the store. The robbers took money and money orders as well as the wallets of the two clerks. One of the men ordered a clerk to open the cash register, but the clerk did not comply. The two men ran out of the store. The videotape from the stores security cameras was shown to the jury.

Jonathan Moreno (Moreno) and Elena Barajas (Barajas) were in their car in the parking lot when they saw the robbers entering the store while brandishing guns. Moreno drove across the street and reported the robbery to persons in a nearby store while Barajas called 911 on a cell phone. One of the robbers saw Barajas on the phone when he exited the store, and he pointed his gun at her. When the robbers left and entered a white van, Moreno followed. Barajas gave the license number of the van to the 911 operator. At one point, the van pulled over. A man, later identified as defendant, came out of the van unmasked and pointed his gun at Morenos windshield. As Moreno backed up his car, four shots were fired at the car. Moreno stopped when he hit a car behind him, and a bullet struck his tire. The shooter got back in the van, and the van drove away. Moreno saw a police car and gestured to the police to show the direction the van had taken.

An airship directed Officer Alonso Menchaca to a location on Borden Avenue where he saw defendant running. He pursued defendant and apprehended him. He found the wallets of Salcedo and Mejia in defendants pockets. Another officer saw the parked white van and arrested a person exiting the drivers side. A search of the van revealed cash, money orders, and a bottle of liquor. Officer Tarek Ismail, who was assisting a K-9 unit, found two guns and items of clothing in a drainage ditch on Borden Street. One gun had one spent round and the other had three spent rounds. Officer Ismail found and arrested defendants brother.

Victor Salceda, one of the store clerks, was taken to a field showup where he identified defendant and his brother as the robbers. Another clerk, Hector Mejia, was unable to identify the robbers. Moreno identified defendant in the field showup as the person who shot at him, although at the preliminary hearing he was unable to identify which brother shot at him. At the field showup Barajas identified defendant as the shooter. She identified defendants brother as the shooter at the preliminary hearing. Defendant presented no evidence on his behalf.

We have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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^* DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.