Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. 155182, K. Michael Kirkman, Judge.
NARES, Acting P. J.
A jury found Scott C. Anzalone guilty of four counts of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a), 189) with personal discharge of a firearm (Pen. Code, § 12022.53, subd. (c)) (counts 1 through 4), grossly negligent discharge of a firearm (Pen. Code, § 246.3) (count 9), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 10), attempted vehicle theft (Veh. Code, § 10851, subd. (a), Pen. Code, § 664) (count 11), and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (count 12). Additionally, Anzalone admitted having served a prior prison term (Pen. Code, §§ 667.5, subd. (b), 668). The court sentenced him to a prison term of 42 years 6 months plus two consecutive life terms. He appealed, this court reversed the convictions on counts 2 through 4 (People v. Anzalone (2006) 141 Cal.App.4th 380), and the trial court granted a motion by the People to dismiss those counts. The court sentenced Anzalone to prison for life with the possibility of parole plus 24 years 4 months: life with the possibility of parole plus 20 years on count 1, the three-year upper term on count 9, four months (one-third the middle term) on count 11, one year for the prison prior, and stayed terms on counts 10 and 12. Anzalone appeals. We affirm.
BACKGROUND
At approximately 5:30 or 6:00 p.m. on July 11, 2002, Che Love left his car unattended with the key in the ignition. When he returned, Anzalone was getting into the car. After a struggle with Love and his friends, Anzalone ran away, leaving behind one of his shoes. As Love and his friends discussed what had happened, Anzalone drove by in a silver convertible Mitsubishi Eclipse. He pointed a gun at the men and fired two shots. One shot hit Love's car just above Love's head and the other hit the car's trunk near where the other men were seeking cover. Within one to three minutes after the shots, a call was placed to the sheriff's office. The sheriff's office received the call at 6:06 p.m.
On June 4, 2002, a black-over-silver Mitsubishi Eclipse convertible belonging to Patricia Bostrom was stolen from her garage. The manager of a storage facility saw Anzalone driving a black-over-silver Mitsubishi Eclipse convertible to the facility about three times a week between September and December 2002. On December 16, 2002, Anzalone and another person were arrested at the storage facility. The other person was driving Bostrom's Eclipse. Love and two of his friends testified that Bostrom's Eclipse looked very much like the car from which the shots were fired.
At approximately 5:30 p.m. on July 11, 2002, Sarah Hagaman, the manager of an apartment complex, saw a man standing by a truck belonging to one of her tenants, Charles Manna. The truck's door was open. The man standing by the truck smiled at Hagaman. He disappeared but shortly returned as the passenger in a small sports car. The man got into Manna's truck and the two vehicles departed quickly. Hagaman went to Manna's apartment and told him what had occurred. Manna went downstairs, saw his truck was missing, walked back upstairs to his apartment, called the sheriff's office and reported the theft. The sheriff's office received the call at 6:09 p.m. Hagaman was shown a photograph of Bostrom's Eclipse and testified it looked similar to the sports car in which the man who took Manna's truck was riding. Hagaman testified that Anzalone looked like the man who drove off in Manna's truck. After seeing Anzalone smile in court, she was almost certain he was the man.
It is 2.5 miles from the apartment building where Manna's truck was taken to the location of the shooting. Driving at a legal speed, the distance can be covered in five minutes.
Anzalone claimed he could not have attempted to steal Love's car or fire shots at Love and his friends because at that time he was stealing Manna's truck. Anzalone's sister Brandi Harris testified that in July 2002 Anzalone was living with her, had an injured knee and could not run. Harris testified that at some point while he was living with her, he brought home tools. Manna identified those tools as coming from his truck. Harris also testified Anzalone wore smaller shoes than the one left at the shooting site. At trial, Anzalone tried on the shoe. His big toe came one to one and one-half inches from the tip of the shoe.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as a possible but not arguable issue, whether Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct 856; 166 L.Ed.2d 856], requires reduction of Anzalone's three-year upper term sentence on count nine.
We granted Anzalone permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Anzalone has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., O'ROURKE, J.