Opinion
B229806
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ACEVES, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA116009)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed as modified.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Jonathan Aceves appeals from the judgment entered following his conviction by jury of three counts of second degree robbery with the finding that a principal was armed with a firearm in the commission of the offenses. (Pen. Code, §§ 211, 12022, subd. (a).) He was sentenced to four years in state prison. We order that the abstract of judgment be corrected and, as modified, we affirm.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
Because defendant does not challenge the sufficiency of the evidence, we set forth an abbreviated factual summary.
At approximately 2:00 a.m. on July 11, 2010, Rudy Marquez, Justin Brown, and Cody Medrano were drinking beer in the driveway of Brown's home. Defendant and another young man walked by. Defendant's companion asked Marquez and his friends where they were from. Marquez said he did not gang bang. Defendant and the male said they were from Whittier Dead End Locos and proceeded down the street. Because Brown felt threatened by the subject matter of the conversation, he went into his garage and retrieved a gun.
Within minutes, a car approached. A male in the right front passenger seat had a gun. The gunman got out of the car, accompanied by defendant and the male who had been with defendant earlier. The female driver remained in the vehicle. While defendant's unarmed companion stood and looked from side to side, the gunman came up to Marquez, pressed the gun against his head, and told him not to move. Brown threw his gun under his father's truck. Defendant asked Marquez what he had on him and Marquez replied that he had a phone and a wallet. Defendant reached into Marquez's pocket and removed the two items. Defendant proceeded to take Medrano's phone and wallet and Brown's phone and keys. One of the robbers retrieved the gun that Brown had thrown under the truck. Defendant and his companions returned to the car and the vehicle drove away.
Brown called the police and deputies arrived within five minutes. The victims told them what had occurred. They described their assailants and the car. Between 10 and 15 minutes after the robbery, the victims were taken individually to a location to view potential suspects. After being admonished that the robbers might not be among the people being viewed, the victims identified defendant as one of the men who robbed them. After making the identifications, the victims were shown items that were in the backseat of the car that had been detained. The victims recognized their cell phones.
After deputies received a description of the suspect vehicle from the victims, they broadcast that information via the radio. A car matching that description was seen in the area and detained. Defendant, one of the other male suspects, and the driver were inside the vehicle when it was stopped. The gunman was not present. The victims' property was located in the back seat.
At trial, Marquez and Medrano identified defendant as one of the robbers. Brown did not.
Defendant testified that he was at a Dodger party. He left on foot at about 1:00 a.m. with a friend, Arturo. He and Arturo walked past the three victims who were drinking beer in a driveway. Defendant said the victims asked where he and his friend were from. Defendant, realizing the victims were drunk, encouraged Arturo to leave. As they continued to walk, Arturo called a female friend to get a ride. The friend drove up and defendant and Arturo got into the vehicle. Defendant noticed there was a male he had met earlier in the evening sitting in the front passenger seat. Defendant thought they were being driven home. Suddenly, the car stopped in front of the driveway where he had encountered the victims earlier. The male in the front seat and Arturo got out. By the time defendant got out of the car, the male and Arturo ran back, jumped into the car, and the car drove away. Defendant had no idea that a robbery had occurred. The car stopped and the male in the front seat got out and walked away. Shortly thereafter, police stopped the vehicle.
After defendant was detained, he and the other occupants were taken to a location where they were viewed by witnesses. He stated that one of the cell phones found in the car looked like his. He denied seeing keys, cell phones, or wallets in the car or anyone with a gun.
Defendant denied being a member of the Whittier Dead End Locos gang. In rebuttal, the prosecution presented a photograph of defendant with the initials D and E, the initials of the Dead End Locos gang, tattooed on his chest and field identification cards noting that defendant admitted membership in the gang. Defendant returned to the stand and reiterated that he was not a member of the gang. He also said the field identification cards misrepresented his statements to police.
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DISCUSSION
After reviewing the record, defendant's counsel filed an opening brief and requested that this court independently review the record for appellate issues pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed a declaration wherein he stated that he had advised defendant of the nature of the brief and had sent him a copy. Counsel was in the process of sending defendant a copy of the trial transcript.
On June 22, 2011, we advised defendant that he had 30 days within which to submit any issues that he wished us to consider. To date, we have received no response.
We have independently reviewed the record and have discovered an error in the abstract of judgment. The trial court sentenced defendant to four years on count 1 and ordered that the sentences imposed for counts two and three run concurrently. The court struck the section 12022, subdivision (a) enhancements as to counts two and three. However, the abstract of judgment reflects that sentence on the two enhancements was stayed. This court has the inherent authority to correct errors in the abstract of judgment that do not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thus, we order that the abstract of judgment be corrected to strike the section 12022, subdivision (a) enhancement for counts two and three.
We are satisfied that no other arguable issues exist and that defendant has, by virtue of counsel's compliance with the Wende procedure and our independent review of the record, received effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 277-279; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
DISPOSITION
The abstract of judgment is corrected by striking the section 12022, subdivision (a) enhancements as to counts two and three. The clerk of the superior court is directed to prepare a copy of the amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.