Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD181804, Robert F. O'Neill, Judge. Affirmed.
McINTYRE, J.
In September 2005 a jury found Mafiosi A. Gelashvili guilty of kidnapping for ransom (Pen. Code, § 209, sud. (a); count 1; all statutory references are to the Penal Code); attempted robbery (§§ 664, 211; count 2); burglary (§ 459; count 3); and two counts of assault with a firearm (§ 245, sud. (b); counts 4 & 5), all enhanced by personal firearm use (§§ 12022.5, sud. (a), 12022.53, sud. (b)). The court sentenced Gelashvili to prison for life plus 32 years four months: life with the possibility of parole on count 1 and 10 years for the section 12022.53, subdivision (b) enhancement; stayed terms (§ 654) on counts 2 and 3; a nine-year upper term on count 4 and 10 years for the section 12022.5, subdivision (a) enhancement; and consecutive sentences of two years (one-third the middle term) on count 5 and one year four months (one-third the middle term) for the section 12022.5, subdivision (a) enhancement. Gelashvili appealed.
In December 2007 this court stayed the sentence and enhancement on count 4; reversed the upper terms on counts 2 through 4 pursuant to Blakeley v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270 and remanded; and ordered the abstract of judgment corrected to reflect that (1) the determinate terms on counts 1 and 5 were to run before the count 1 indeterminate term and (2) the enhancement in count 3 was imposed pursuant to section 12022.5, subdivision (a). (People v. Gelashvili (Dec. 12, 2007, D047844) [nonpub. opn.].) On remand the trial court sentenced Gelashvili to life plus 10 years: life with the possibility of parole on count 1 and 10 years for the section 12022.53, subdivision (b) enhancement; stayed middle term sentences on counts 2 through 4 and their enhancements; and the six-year middle term on count 5 and four years for its enhancement, to be served concurrently with the indeterminate term. The court stated that the count 1 enhancement was to run before the indeterminate term and the abstract specified that the enhancement in count 3 was imposed pursuant to section 12022.5, subdivision (a). Gelashvili again appeals. We affirm.
BACKGROUND
The underlying facts are set forth fully in this court's prior opinion. (People v. Gelashvili, supra, D047844. Briefly, on March 26, 2004, Gelashvili entered Oktai Alie's home, assaulted him with a semiautomatic firearm, robbed him and falsely imprisoned him, personally inflicting great bodily injury, kidnapped him for ransom and assaulted Alie's wife Elena with a semiautomatic firearm. Gelashvili personally used a handgun during the offenses.
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, she lists, as possible but not arguable issues: (1) whether the trial court followed this court's directive to stay the sentence on count 4, specify that the determinate terms were to be served before the indeterminate term and correct the abstract of judgment to specify that the enhancement in count 3 was imposed pursuant to section 12022.5, subdivision (a); (2) whether the trial court acted within its discretionary powers by reimposing the sentence of life with the possibility of parole on count 1, imposing middle term sentences on counts 2 and 4 and ordering the sentence of count 5 to be served concurrently with count 1; and (3) whether the trial court committed prejudicial error by resentencing Gelashvili without the benefit of a supplemental probation report.
We granted Gelashvili permission to file a brief on his own behalf. He has responded, contending (1) the evidence was insufficient to support a conviction of kidnapping for ransom because Alie was not seized or confined, there was no confinement after the demand for ransom, the intent to collect ransom arose after the confinement ceased, and Alie was not credible; (2) trial counsel was ineffective because he failed to mention Alie's many contradictions and lies, argue that Alie's movement did not subject him to a substantially increased risk of harm, and failed to obtain an expert on stress and perception; and (3) the prosecutor presented misleading argument regarding the elements of kidnapping for ransom. "[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay." (People v. Senior (1995) 33 Cal.App.4th 531, 538.) Gelashvili could have raised these contentions in his earlier appeal but did not do so. We therefore reject his contentions.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Gelashvili has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McConnell, P. J., IRION, J.