P. v. Blanco
Filed 1/23/13
P. v. Blanco CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
IVAN ALEJANDRO ZAMORA BLANCO,
Defendant and
Appellant.
F064101
(Super.
Ct. No. 1418747)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Dawna Reeves, Judge.
Marcia R.
Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric
L. Christoffersen and Jennevee H. DeGuzman, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
On
September 13, 2011, a Stanislaus County jury found appellant Ivan Alejandro
Zamora Blanco guilty in count 1 of attempted
premeditated murder (Pen. Code,
name="_ftnref2" title="">[1] §§ 187, 664), in count 2 of assault with
a firearm (§ 245, subd. (a)(2)), in count 5 of the lesser included offense
of discharge of a firearm from a motor vehicle (§ 12034, subd. (d)), and
in count 6 of assault with a semiautomatic firearm (§ 245, subd.
(b)). The jury found that appellant
personally used a firearm during the commission of counts 1, 2 and 6
(§ 12022.5, subd. (a)) and personally and intentionally discharged a
firearm during the commission of count 1 (§ 12022.53, subd. (c)).
On November
4, 2011, the trial court sentenced appellant to
possibility of parole on count 1, plus 20 years for the related section
12022.53, subdivision (c) enhancement.
As to count 6, the court sentenced appellant to five years in state
prison plus four years for the related section 12022.5 enhancement. The court stayed the sentence imposed on
count 2 and sentenced appellant to two years in state prison in count 5, the
term to be served concurrently with the term imposed on count 6.
On January
3, 2012, appellant filed a notice of
appeal.
On the evening
of January 26, 2010, Christina Casillas drove her red Dodge Stratus on West
Main Street in Turlock and headed for the Freeway 99 onramp to Modesto. Appellant pulled out in front of her and
proceeded slowly in his white Lincoln Aviator.
Casillas passed the Aviator and then stopped at a red light. When Casillas reached the freeway onramp,
appellant sped up and passed her on the left as the two vehicles entered the
freeway.
Appellant
and Casillas moved to the middle lane and Casillas’s vehicle followed the
Aviator. The Aviator eventually moved
into the right lane and pulled up next to Casillas’s vehicle. Casillas turned her head and saw that
appellant was looking at her. Casillas
then heard a smash and realized that the back passenger window of her vehicle
was shattered. She heard another smash
and the driver’s side front window shattered.
Casillas moved her vehicle into the slow lane and observed appellant get
off the freeway at the Fulkerth Road exit.
She proceeded to the Monte Vista Avenue exit, got off the freeway, and
called 911 and her cousin Carmen Guzman.
Turlock Police Officer Amy Beebe
responded to the scene and recovered bullet fragments from the Stratus. In Officer Beebe’s opinion, the bullet
entered through the rear passenger door, passed through the interior of the
vehicle, pierced the front headrest on the driver’s side, and exited through
the front driver’s side window. Casillas
described the suspect and his vehicle to Beebe.
Casillas later saw a Lincoln Aviator in the Turlock area and telephoned
the police with the license plate number.
Casillas eventually met with a police detective and identified
appellant’s picture from a photographic lineup.
On the
afternoon of March 29, 2010, appellant drove past the James Hicks home in
Turlock and exchanged words with one of Hicks’s sons. From his Lincoln Aviator, appellant accused
the son of stealing some tools the day before.
Appellant drove past the Hicks home, turned around in a cul-de-sac, and
drove back to the Hicks residence.
Appellant pulled to the curb in front of the Hicks residence so that the
driver’s window was close to the house.
Appellant and Hicks argued with one another. Appellant extended his arm through the
driver’s window and pointed a gun at Hicks and several of his sons. Hicks ran toward appellant to block the
weapon and prevent appellant from shooting at the children. When Hicks got within two feet of the
vehicle, appellant fired the weapon, leaving gunpowder residue on Hicks’s
face. After appellant departed, Hicks
found a shell casing on the street and called police. Hicks’s wife and three of his sons identified
appellant’s picture in a photographic lineup.
THE TWO-YEAR
SENTENCE IMPOSED ON COUNT FIVE MUST
BE STAYED PURSUANT TO SECTION 654
Appellant
contends and respondent concedes the trial court erroneously imposed a
concurrent two-year term on count 5.
Respondent
explains:
“Here, it is
undisputed that appellant engaged in a single act of firing the gun from his
car. The trial court reasoned that
section 654 was inapplicable because count five required that the shooting be
from a vehicle while count six involved an assault with a firearm. Although the requirement of a vehicle is not
present for a violation of count six, section 654 addresses punishment for
‘criminal acts and omissions.’ (
611.) Because appellant engaged in a
single criminal act, the sentencing court should have stayed the sentence
imposed in count five.â€
DISPOSITION
The
judgment is affirmed. The superior court
is directed to stay the concurrent term imposed on count 5, to amend the
abstract of judgment accordingly, and to transmit certified copies of the
amended abstract to all appropriate parties and entities.
and Franson, J.
Penal Code unless otherwise stated.
