Opinion
G058940
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. OMAR SANCHEZ BELTRAN, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF0949) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Omar Sanchez Beltran on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on Beltran's behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738, to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following issues: (1) Is imperfect self-defense a defense to the offenses of shooting at an occupied motor vehicle (Pen. Code, § 246, all further statutory references are to the Penal Code), shooting a firearm in a grossly negligent manner (§ 246.3), and assault with a semi-automatic firearm (§ 245, subd. (a)); (2) Did the trial court err by refusing to instruct that grossly negligent discharge of a firearm is a necessarily lesser included offense of assault with a semi-automatic firearm; (3) Was Beltran exempt from the section 12022.5, subdivision (a), firearm enhancement because use of a firearm is an element of the charged offense of assault with a semi-automatic firearm, and/or because the allegation was not charged in the original information; and (4) Was the court aware of and did it exercise its discretion to impose or strike the section 12022.5, subdivision (a), firearm enhancement on count 7.
We gave Beltran 30 days to file written argument on his own behalf. Thirty days have passed, and Beltran has not filed any written argument.
We have reviewed the record in accordance with our obligations under Wende and we found no other arguable issues on appeal. We affirm the judgment.
FACTS
Beltran and Francisco Javier Amaya grew up together in Myrtle Street gang territory in Santa Ana. Amaya was a Myrtle Street gang member, and he was released from prison several months prior to this incident. Beltran was not a gang member.
Amaya saw Beltran at Original Mike's, a club in Santa Ana. Beltran was with his wife, and Amaya was with his girlfriend and two of her female friends. Amaya's girlfriend had driven to Original Mike's and parked the car in the parking lot across the street from the club. The group, except for Beltran, left Original Mike's at closing time, and they walked across the street to the parking lot. Beltran later joined the group at the parking lot. At some point after the group left Original Mike's and were in the parking lot, Beltran gave Amaya a gun in the presence of the three women.
Amaya went to the bushes on the edge of the parking lot to urinate. Beltran joined him at the bushes. Amaya saw a white car pull into the area and turned to see if it was a police car. He could not see the occupants because he had very poor eyesight, especially at night. He did not hear them say anything or see them do anything gang related. He noticed the car long enough to confirm it was not the police. After a couple of seconds, Beltran grabbed the gun from Amaya's waistband and left.
Amaya continued urinating into the bushes and heard one of the women at his girlfriend's car yell, "gun." Amaya approached them and heard gunshots coming from Beltran's location. Beltran was pointing the gun at something. The white car Amaya had previously seen was out of his view. Amaya thought the occupants of the white car were shooting at Amaya's group. He ran to Beltran, and Beltran said something about the car. Amaya grabbed the gun from Beltran because he was fearful the car might return. Amaya ran around the corner and saw the white car leaving the parking lot and speeding off with a second car behind it. Amaya started firing the gun, to make them leave. Amaya testified he had not thought about killing the occupants of the cars. After firing at the white car, Amaya ran back to his girlfriend's car and left in the car with her. As he and his girlfriend were driving away, a police vehicle pursued them. Amaya threw the gun out of the window because of his prior conviction.
At approximately 2:00 a.m., Officer Anthony Cardenal was at the police station about two blocks away from Original Mike's. Over the radio, he heard another officer, who was working mounted patrol in the area, had heard gun shots coming from the area of Original Mike's. Cardenal responded with another officer in a patrol vehicle. As the officers approached the area, Cardenal saw a black 1995 Infiniti driving westbound at a high rate of speed with the headlights turned off. Cardenal began following the vehicle as he waited for additional officers to respond. Officers ultimately stopped the vehicle. Amaya was sitting in the vehicle's front passenger seat.
In a subsequent search, a firearm was recovered on the side of the road where the Infiniti had traveled. Shell casings recovered in the parking lot near Original Mike's matched the gun. The parties stipulated Beltran's DNA was on the gun's magazine. The parties also stipulated video surveillance cameras at the scene showed Beltran fired a gun twice from approximately 2:00:25 a.m. through 2:00:28 a.m., and Amaya fired a gun six times from approximately 2:00:38 a.m. through 2:00:48 a.m.
Sergeant Rudy Reynoso testified as a gang expert and opined Amaya and Beltran were gang members, the shooting was gang related, and the shooting would benefit Amaya's gang. The parties stipulated Beltran had a prior misdemeanor that prohibited him from possessing a firearm.
An amended information charged Beltran with attempted murder (§§ 664, subd. (a), 187, subd. (a), count 1); street terrorism (§ 186.22, subd. (a), count 3); shooting at an occupied motor vehicle (§ 246, count 4), assault with a semiautomatic firearm (§ 245, subd. (b), count 7), and possession of firearm by misdemeanant with a prior conviction (§ 29805, subd. (a), count 8). The information alleged Beltran committed counts 1, 4, 7, and 8 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and committed count 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The information also alleged that during counts 1, 2, and 4, he intentionally and personally discharged a firearm (§ 12022.53, subd. (c), and that during count 7 he personally used a firearm (§ 12022.5, subd. (a)).
The amended information also charged Amaya with these and other offenses. --------
A jury convicted Beltran of counts 4, 7, and 8, but acquitted him of counts 1 and 3. The jury found the firearm allegations as to counts 4 and 7 true, but the gang allegations not true. The trial court sentenced Beltran to six years on count 7 and four years for the firearm enhancement for a total prison sentence of 10 years. The court imposed and stayed sentences on the other counts.
DISCUSSION
We have independently examined the entire record and reviewed issues noted by counsel and find no arguable issues. The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. GOETHALS, J.