Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA069870 John P. Doyle, Judge.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P.J.
Adrian Armando Escajeda appeals from the judgment entered following a jury trial in which he was convicted in count 1 of one count of second degree robbery (Pen. Code, § 211) and in counts 2 through 4 of three counts of first degree robbery (Pen. Code, § 211) with the true finding that during the commission of the four robberies, he personally used a deadly and dangerous weapon, an air gun, within the meaning of Penal Code section 12022, subdivision (b)(1). He admitted that he suffered a prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), two prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4), and that he served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
He was sentenced to prison for 20 years and four months, consisting of in count 2, the middle term of four years, doubled by reason of his strike conviction, for a total of eight years. For counts 3 and 4, the court imposed one-third the middle term, which was 16 months, doubled to two years and eight months for each count. For count 1, the court imposed one-third the middle term, which was one year, doubled to two years. Additionally, the court imposed five years pursuant to Penal Code section 667, subdivision (a)(1). The two one-year enhancements pursuant to Penal Code section 667.5, subdivision (b) and the enhancements pursuant to Penal Code section 12022, subdivision (b)(1) were imposed and stayed.
The evidence at trial established that on four occasions in May 2007, in the City of Glendale, appellant robbed an individual at gunpoint of money and personal items. In three instances the victims were taxi cab drivers driving appellant to his requested destination. In three of the instances, the victims identified People’s Exhibit 4 as the weapon appellant used. In the fourth instance, the victim testified appellant put something, which the victim believed was a knife, to the victim’s neck.
People’s Exhibit 4 was described as a BB gun or an air gun that had an area for a CO2 cylinder. The CO2 was used to eject the BB’s from the front of the handgun. The weapon could be used “as a blunt force trauma but not as a handgun... in terms of discharging a projectile with combustion such as gun powder.”
Following receipt of evidence, appellant’s motion with respect to the gun allegation alleged pursuant to Penal Code section 12022.53 was granted. The court explained there would be no fact for the jury as to whether a BB gun or pellet gun, as opposed to a firearm, was used. The prosecution observed the jury would decide whether a pellet gun was used in counts 1, 2, 3, and 4 and the court was going to have to amend the jury instruction. The jury was instructed it was to decide if appellant personally used a dangerous or deadly weapon within the meaning of Penal Code section 12022, subdivision (b)(1).
Appellant’s Romero motion to strike his prior strike conviction was heard and denied.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On July 21, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On August 14, 2009, appellant filed a supplemental brief. He asserted he “was given prison term enhancement and the use of a deadly weapon enhancement with the sentence held on those enhancements without the trial court having authority to do so! The court gave no burden of proof for the enhancements held thereto.” He also claimed he was denied due process under the Fourteenth Amendment and that his sentence constituted cruel and unusual punishment based on the unauthorized enhancements, and that he was denied effective assistance of his appellate counsel.
The record reflects that appellant admitted he served the two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and that the jury found true the deadly weapon enhancements within the meaning of Penal Code section 12022, subdivision (b)(1). The record also reflects that appellant did not receive a sentence for any of these enhancements. Appellant’s claim he was punished for the enhancements, that his punishment was cruel and unusual based on these enhancements, and that he was denied due process of law based on these enhancements is not supported by the record. Similarly, his claim he was denied the effective assistance of appellate counsel is not demonstrated by the record. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.