P. v. Urquidez
Filed 6/27/08 P. v. Urquidez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, Plaintiff and Respondent, v. RUBEN URQUIDEZ et al., Defendants and Appellants. | B200644 (Los Angeles County Super. Ct. No. KA078655) |
APPEALS from a judgment of the Superior Court of Los Angeles County,
George Genesta, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Urquidez.
Gerald Peters, under appointment by the Court of Appeal for Defendant and Appellant Luis Hernandez.
No appearance for Plaintiff and Respondent.
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Ruben Urquidez and Luis Hernandez (defendants) were charged by information with second degree robbery (Pen. Code, 211)[1](count 1), with a special allegation a principal was armed with a firearm in the commission of the offense ( 12022, subd. (a)(1)). The information additionally charged Urquidez with two misdemeanor offenses: exhibiting a firearm ( 417, subd. (a)(2)) (count 2), and brandishing a replica gun ( 417.4) (count 3). With respect to Hernandez, the information specially alleged as to count 1, he had committed a serious or violent felony (aggravated assault) within the meaning of section 667, subdivision (a)(1) and the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and he had served a separate prison term for a felony ( 667.5, subd. (b)).
On June 20, 2007, the trial court granted the Peoples motions to dismiss count 2 against Urquidez in furtherance of justice ( 1385) and the arming allegation against Hernandez. Hernandez made a motion to set aside the information ( 995) as to count 1, arguing by needlessly shackling him during his preliminary hearing, the magistrate violated his Sixth Amendment right by depriving him of the ability to communicate with counsel in writing. The trial court heard and denied the motion, finding that even if Hernandez were improperly shackled during the preliminary hearing he failed to demonstrate resulting prejudice.[2] Jury trial commenced the same day.
According to the trial evidence, Ivan Velasquez, Rene Garcia and the defendants were riding a transit bus in Los Angeles on the morning of March 29, 2007. Velasquez and Garcia were headed for high school. When Velasquez alighted from the bus and began walking to school, the defendants and Garcia also left the bus. Garcia was about 30 feet behind Velasquez, when the defendants quickly passed her on foot and approached Velasquez from behind. The defendants forced Velasquez to move to his right as Urquidez said, Break yourself, which Velasquez understood as a demand for his jewelry. Velasquez was fearful he would be harmed if he refused to comply. The defendants were within a few feet of Velasquez. Urquidez was carrying a white shopping bag. Velasquez removed his necklace, bracelet, ring and watch and placed them in Hernandezs outstretched hand.
As Garcia was walking with her friends she witnessed the robbery. Garcia told the defendants what they had done was wrong, and they should return Velasquezs property. Urquidez made it clear the incident was none of her concern. Garcia and her friends continued to walk behind the defendants. Urquidez displayed a gun at some point, and a friend of Garcia telephoned police.
When officers arrived, the defendants fled; and Hernandez dropped the white plastic bag he was carrying. Police detained the defendants and found Velasquezs watch, bracelet, and ring inside the bag. Velasquezs necklace was never recovered.
Neither Urquidez nor Hernandez testified in his defense.
On June 22, 2007, the jury convicted the defendants of count 1, but acquitted Urquidez of the remaining count of brandishing a replica gun.
Hernandez waived his right to jury trial on the prior conviction allegations and admitted his prior convictions were true. The People did not proceed on the one-year prior prison term allegation; and the trial court dismissed it for purposes of sentencing.
On July 10, 2007, the trial court sentenced Urquidez to state prison for three years eight months, consisting of the three-year middle term for robbery and a consecutive term of eight months for violating his probation.[3] Urquidez received presentence custody credit of 195 days (154 actual days and 41 days of conduct credit). The court ordered Urquidez to pay a $20 security assessment, a $10 crime prevention fee plus penalty assessments, and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45.
The same day, Hernandez was sentenced to 11 years in state prison, consisting of six years for robbery (the three-year middle term doubled under the Three Strikes law) plus five years for the prior serious felony conviction. Hernandez was awarded presentence custody credit of 120 days (104 actual days and 16 days of conduct credit). He was ordered to pay a $20 security assessment, a $10 crime prevention fee plus penalty assessments, and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45.
Defendants filed timely notices of appeal and we appointed counsel to represent each of them on appeal. After an examination of the record each counsel filed an Opening Brief in which no issues were raised. On January 10 and 24, 2008, we advised Hernandez and Urquidez, respectively, each of them had 30 days within which to personally submit any contentions or issues we were to consider.
No response has been received from Urquidez. On January 29, 2008, Hernandez filed a handprinted supplemental brief that appears to challenge the denial of his motion to set aside the information, the fitness of the jury, the sufficiency of the evidence, and his sentence as a second strike offender.
We have examined the entire record and are satisfied defendants respective counsel have complied fully with their responsibilities and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) After considering Hernandezs claims, we conclude they are without merit. His section 995 motion was not wrongly denied (see People v. Fierro (1991) 1 Cal.4th 173, 218-220; Solomon v.Superior Court (1981) 122 Cal.App.3d 532, 535-538), the record fails to suggest the jury was either inattentive or disinterested during trial (Compare: People v. Johnson (1993) 6 Cal.4th 1, 21-22; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333), substantial evidence supported his robbery conviction (see People v. Bolin (1998) 18 Cal.4th 297, 331), and Hernandez was properly sentenced as a second-strike offender rather than as a third-strike offender as he asserts.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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[1] Undesignated statutory references are to the Penal Code.
[2] The trial court noted the reporters transcript showed Hernandezs counsel asked that Hernandez be unshackled so he could make notes during the preliminary hearing. The magistrate inquired of the bailiff who explained the need to call for backup if either defendant were unshackled, which would delay the preliminary hearing a little while. The magistrate responded, Well, lets go ahead and proceed and well see if it appears that there is a real problem in regards to [Hernandez], then well have to call for backup. Neither Hernandez nor his counsel objected or made another request to have his physical restraints to be removed during the preliminary hearing.
[3] Urquidez was currently on probation after having been convicted of committing grand theft ( 487, subd. (a)) in Los Angeles Superior Court case No. KA075258. For the probation violation, the trial court imposed an additional eight months in state prison or one-third the middle two-year term for grand theft, to be served consecutively to the term imposed for robbery.
