Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FCH07176. Gerard S. Brown, Judge.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut J.
A jury found defendant Alfred Vicario guilty of shooting at an occupied dwelling (Pen. Code, § 246) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)); at a subsequent court trial, true findings were made on two Strike allegations (§ 667, subds. (b)-(i)), and three prison prior allegations. (§ 667.5, subd. (b).) He was sentenced to state prison for an aggregate term of 53 years to life.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
On April 2, 2005, Anna M. was cleaning the side yard of her residence when she heard her gate open and saw the defendant run past her. Defendant turned and walked towards her and began pacing. Anna noticed he had a gun. Anna asked him what was going on, but defendant did not reply; he merely ran into the back yard and then around the residence. Anna came out to the front of the residence.
From the front of the property, Anna heard something on the east side of the property and approached the gate where she saw defendant with the gun in his hand. Then she heard her friend Gabriel drive up, returning the car he had borrowed from Anna. Anna opened the gate so Gabriel could park in the driveway, and saw defendant in the driveway behind a secondary gate. Anna asked Gabriel not to leave.
Anna and Gabriel went inside the residence and to the back door, where they could see that defendant was near the laundry room. Both Anna and Gabriel tried to get defendant to leave. Instead, defendant fired a shot into the door, striking the stucco. Both Anna and Gabriel felt a spray of debris in the face from the shot, although neither was wounded. Anna and Gabriel retreated to Anna’s parents’ bedroom, where they heard a second shot. A neighbor helped them leave the house and someone called police. When police arrived, Anna, who did not know defendant, described the shooting suspect as Hispanic, with a mustache, wearing a white shirt and blue jeans, and holding a gun.
A short time later, defendant was taken into custody when he was observed staggering up the street with a chrome revolver in his hand. He was wearing a white shirt and blue pants. The cylinder had three live rounds and two expended cartridges. Defendant appeared to be under the influence of a stimulant: he was fidgety, could not control his movements, was sweating profusely. He was taken to a hospital for detoxification, and was later interviewed. He told the officer he was being chased by people with guns, members of the Mexican Mafia, because he had not paid his “taxes,” that is, a portion of the profits from drug sales. A gunshot residue test was conducted, and a particle of gunshot residue was found on defendant’s left hand.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. However, when he filed his pro se notice of appeal, he attached a letter to the appellate department of the superior court in which he raised an issue. We will treat this letter as a supplemental letter brief. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, there was no error in the court’s refusal to disqualify Juror No. 1, or to deny defendant’s motion for new trial. After Anna M. testified on direct, the juror informed the court she recognized the witness because she had taught Anna’s niece in school eight years earlier. Upon inquiry by the court, the juror assured the court she could be fair. The court indicated it was persuaded the juror was not biased, and defense counsel agreed the juror could be fair and impartial. After the verdict, defendant renewed this ground in his motion for new trial which was denied.
A trial court is vested with broad discretion to act on a motion for new trial. (People v. Ault (2004) 33 Cal.4th 1250, 1260.) On appeal, we accept the trial court’s factual findings and credibility determinations if they are supported by substantial evidence, but we exercise independent judgment to determine whether any misconduct was prejudicial. (People v. Dykes (2009) 46 Cal.4th 731, 809.) Here, there was no showing that the juror’s failure to inform the court of her prior acquaintance with the witness was intentional, and she assured the court she was impartial. At that time, defense counsel agreed. To find misconduct on the basis of concealment which is unintentional and the result of misunderstanding or forgetfulness would be excessive. (People v. Barber (2002) 102 Cal.App.4th 145, 153.)
We have also reviewed the entire record to determine whether there was substantial evidence to support the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 562, citing Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560].) There was ample solid and credible evidence, direct and circumstantial, to support the jury’s verdict.
The record shows the court did not misunderstand its sentencing discretion in denying the defendant’s request that it exercise its inherent discretion to strike or dismiss one or more of the findings that defendant had previously been convicted of a serious or violent felony under the Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subd. (c).) The court considered the nature of defendant’s current offenses, his criminal history, and his prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
We have also reviewed the sentencing record and find that the trial court was well aware of the scope of his discretion. Section 654 does not bar separate punishment for a section 12021 offense and another offense in which a weapon was involved. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410.)
We have conducted an independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.
DISPOSITION
The judgment is affirmed.
We concur: Richli Acting P. J. Miller J.