P. v. Arenas
Filed 10/26/10 P. v. Arenas CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL SANTANO ARENAS,
Defendant and Appellant.
D056717
(Super. Ct.
No. FWV030007)
APPEAL from
a judgment of the Superior Court
of San Bernardino
County, Gerard S. Brown, Judge. Affirmed.
This appeal by Daniel Santano
Arenas proceeds in accordance with People
v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL
AND PROCEDURAL BACKGROUND
Arenas was arrested as a result of
an incident in which he assaulted his girlfriend and her sister-in-law, and had
an ensuing confrontation with police, at a Shakey's Pizza Parlor
restaurant. Based on the incident, he
was charged with the following crimes:
(1) possession of a firearm by an ex-felon (count 1); (2)
exhibiting a loaded firearm in a rude, angry or threatening manner (count 2);
(3) misdemeanor battery (count 3); (4) assault with a semiautomatic firearm
(count 4); (5) exhibiting a firearm in the presence of an officer (count 5);
(6) exhibiting a deadly weapon to an officer to resist arrest (count 6); (7)
resisting an officer (count 7); (8) assault on an officer with a semiautomatic
firearm (counts 8-10); and (9) discharge of a firearm with gross negligence (count 11). (The facts underlying the incident and
Arenas's prosecution are set forth more fully in People v. Arenas (Dec.
18, 2007, D050417) [nonpub. opn.] (Arenas).)
At trial, a jury convicted Arenas
of all charges against him and found true the following sentencing enhancement
allegations: as to counts 1 and 5
through 11, that the offenses were for the benefit of, at the direction of or
in association with a criminal street gang; as to counts 4 and 7, that Arenas
personally used a firearm; and as to counts 8 through 10, that he personally
and intentionally discharged a firearm.
(Arenas, supra, D050417.) The jury
made true findings that Arenas had suffered two strike prior convictions, two
serious felony prior convictions and three prior prison terms. (Ibid.)
Thereafter, the trial court
dismissed one of Arenas's two strike prior convictions and sentenced him to a
total prison term of 64 years four months, consisting of: (1) 14 years for count 8, plus 20 years for
the related gun discharge enhancement and 10 years for the related violent
felony gang enhancement; (2) one year four months for count 1, plus one year
for the related gang enhancement; (3) four years for count 4, plus one year for
the related gun use enhancement; (4) 10 years for Arenas's two prior serious
felony convictions; and (5) three years for his three prior prison terms. (Arenas,
and enhancements were either imposed to run concurrently or stayed. (Ibid.)
Arenas appealed, raising numerous
challenges to the judgment of conviction. Specifically, he contended that (1) the trial
court erred in (a) denying his mid-trial request for appointment of counsel to
represent him, (b) discharging a juror during trial, (c) imposing two separate
gang enhancements in violation of Penal Code section 654 and (d) imposing
consecutive sentences on the firearm possession and assault with a firearm
counts (counts 1 and 4, respectively); and (2) there was insufficient evidence
to support (a) the personal and intentional gun use enhancements and (b) the
gang enhancements. (Arenas, supra,
D050417.) This court concluded that the
imposition of sentence on both of the five-year prior serious felony conviction
enhancements was error because those prior serious felony convictions were not
brought and tried separately as required pursuant to Penal Code section 667,
subdivision (a)(1), and that the abstract of judgment erroneously provided for
four one-year prior prison term enhancements (rather than the three such
enhancements alleged by the prosecution, found true by the jury and imposed by
the court). (Arenas, supra, D050417.)
The court modified the judgment to
strike the second five-year prior serious felony enhancement, affirmed the
judgment as modified and remanded the matter with directions to the superior
court to file a corrected abstract of judgment.
(Arenas, supra, D050417.) The total
sentence after the modifications was 59 years four months. (Ibid.) Arenas filed a petition for review and a
petition for writ of habeas corpus with the California Supreme Court; both were
summarily denied.
Arenas filed a petition for a writ of habeas corpus in the United
States District Court. (
Aug. 20, 2009, EDCV No.
08-00943-GAF (MLG) 2009 U.S.
Dist. Lexis 89867.) In it, Arenas
reiterated a number of the arguments he raised, unsuccessfully, in his appeal
and additionally contended that the trial court erred in denying him the right
to call numerous witnesses and the opportunity to present certain defense
evidence and that the prosecutor knowingly introduced false testimony at
trial. (Arenas also argued that he
suffered ineffective assistance of appellate counsel, although he later
withdrew that claim.) The district court
denied Arenas's petition except as to his contention that the evidence was
insufficient to support the jury's true findings on the gang enhancements. In that regard, it granted the petition and
sent the matter back to the state court for resentencing. (Arenas
v. Walker
(C.D. Cal. Sep. 28, 2009, EDCV No.
08-00943-GAF (MLG) 2009 U.S.
Dist. Lexis 89850.)
In connection with the resentencing
hearing, Arenas's counsel filed a brief contending that (1) the jury had made
inconsistent findings at trial, concluding as to count 8 that Arenas
intentionally fired a weapon upon a peace officer and as to count 11 that he
willfully discharged his weapon in a grossly negligent manner; and (2) the
admission at trial of evidence that Arenas was a member of a criminal street
gang was unduly prejudicial and caused the jury to find him guilty. The superior court (notably, the same judge
who presided over the trial and imposed the original sentence) questioned
whether it had the authority to consider Arenas's arguments, rejected those
arguments on their merits to the extent it had such authority, and then
sentenced Arenas to 48 years 4 months in prison (a reduction of the original
sentence term by the 11 consecutive years imposed for the gang
enhancements).
Arenas again appeals.
DISCUSSION
Arenas's counsel has filed a brief
indicating that he has been unable to identify any argument for reversal and
asking this court to review the record for error as mandated by
accordance with Anders v. California
(1967) 386 U.S. 738 (Anders),
counsel's brief identifies one issue as possible, but not arguable, on appeal,
to wit, whether the trial court on remand improperly adopted the sentencing
scheme adopted by the earlier sentencing court without making reasoned
sentencing choices.
This court also invited Arenas to
file a brief on his own behalf and he has done so. In it, he argues that (1) the jury made
inconsistent findings at trial, concluding as to count 8 that he intentionally
fired his weapon upon a peace officer and as to count 11 that he willfully
discharged his weapon in a grossly negligent manner; and (2) the admission at
trial of evidence that he was a member of a criminal street gang was unduly
prejudicial and caused the jury to find him guilty. However, pursuant to long-established law, an
appellant is generally precluded from raising issues on appeal that he could
have, but failed to, raise in the trial court in the first instance. (E.g.,
147, 166.) The issues that Arenas now
seeks to raise could have been raised, but were not, at his trial or on his
first appeal and, for this reason, they do not support a reversal of the
judgment.
We have
reviewed the record in accordance with Wende
and Anders and have not found any
reasonably arguable appellate issues. Competent counsel has represented Arenas on
this appeal.
DISPOSITION
The
judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE,
Acting P. J.
HALLER,
J.
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