Filed 8/24/17 P. v. Verduzco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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A jury convicted appellant Santos Anguiano Verduzco on two counts each of attempted voluntary manslaughter (Pen. Code, §§ 664, 192),[1] a lesser included offense of the attempted murder charged in counts 1 and 2, and discharging a firearm into a motor vehicle (§ 246/counts 6 and 7), three counts of assault with a firearm (§ 245, subd. (a)(2)/counts 3, 4, and 5), and one count each of possession of a firearm by a felon (§ 29800, subd. (a)(1))/count 8), and possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1)/count 9). The jury also found true allegations in counts 1 through 5 that Verduzco personally used a firearm within the meaning of section 12022.5, subdivision (a), allegations in count 1 that Verduzco personally used a firearm within the meaning of section 12022.53, subdivision (b) and allegations in count 2 that Verduzco personally discharged a firearm within the meaning of section 12022.53, subdivision (c).

Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2015, shortly before 6:00 p.m., Sergio Ayon was at a ranch in Kern County where he raised horses, when Verduzco arrived in a Toyota 4Runner and began raising lots of dust by driving in circles. Ayon’s friend, Sergio Mena, soon drove up and followed Verduzco until Verduzco stopped. Mena got out of his car and approached Verduzco’s vehicle to see what was going on. However, he backed away when he saw Verduzco holding a large knife and heard him make bellicose remarks. Verduzco then drove away and Mena spoke to Ayon. Ayon told Mena he was going to talk with Verduzco. As Ayon was leaving in his truck, Heroclio Mendoza arrived and got in with him. Mena followed in his car.

Ayon drove north on Weedpatch Highway. When he approached the intersection at Hallelujah Street, he saw Verduzco traveling westbound in his Toyota 4Runner toward the highway. Ayon parked his truck on the shoulder of the highway and got out to speak with Verduzco. Verduzco stopped his vehicle and got out holding a shotgun. As Verduzco walked toward Ayon, Ayon asked him what was going on and told Verduzco to calm down. Verduzco ignored Ayon and continued walking towards him so Ayon got back in his truck. Verduzco went to the front passenger’s window, stuck the barrel of the shotgun in the window and pointed it at Ayon. He told Mendoza to get down because he did not want to harm him. Ayon turned to his left and Mendoza ducked down. At the same time, Ayon took his foot off the brake and pressed on the gas pedal, causing his truck to move forward. The shotgun then discharged and shattered the rear side windows of the truck’s king cab.

Mena initially parked behind Ayon’s truck. When the shotgun discharged, Mena had just moved his car in front of Ayon’s truck. He turned around and saw Verduzco pointing the shotgun at Ayon and Mendoza. As he got out of his car, Mena heard Verduzco uttering threats. Mena walked over to Verduzco’s Toyota 4Runner and took the keys from the ignition. Verduzco responded by chasing Mena around the Toyota 4Runner with his shotgun pointed at Mena while he repeatedly pulled the trigger. The shotgun did not discharge and Verduzco returned to his truck. Meanwhile, Ayon positioned his truck to prevent Verduzco from leaving. Mena then picked up a stick and began hitting a window and a door on Verduzco’s Toyota 4Runner to get him to open the door. Eventually, the window broke and Verduzco got out of his vehicle and began swinging the shotgun like a bat at Mena and Ayon. Although Mena used the stick to block the shotgun from hitting him, it struck him at least once on the hand. Mendoza subsequently came up behind Verduzco and tackled him. The trio was able to subdue Verduzco and Mendoza took the shotgun away from him.

An off duty Bakersfield police officer who happened to pass by, stopped and took Verduzco into custody. In a post-arrest interview, Verduzco claimed he was acting in self-defense when he discharged the shotgun.

On October 21, 2015, the Kern County District Attorney filed an amended information charging Verduzco with attempted murder in counts 1 and 2, and numerous other counts and allegations, including the ones he was convicted of or were found true by the jury.

On February 2, 2016, the jury rendered its verdict in this matter.

On March 3, 2016, the court sentenced Verduzco to an aggregate prison term of 14 years two months, the upper term of five years six months on his attempted manslaughter conviction in count 1, the middle term of four years on the arming enhancement in that count, a one-year term on his attempted voluntary manslaughter conviction in count 2, a 16-month term on the arming enhancement in that count, a one-year term on his assault conviction in count 5, a 16-month term on the arming enhancement in that count, and stayed terms on counts 3, 4, 6, 7, 8, and 9.

Verduzco’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Verduzco has not responded to this court’s invitation to submit additional briefing.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.