Opinion
B229299
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE IRIBE, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA106882)
BOREN, P.J. ASHMANN-GERST, J. CHAVEZ, J.
Appellant Enrique Iribe appeals from the judgment entered following a jury trial that resulted in his conviction of one count of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e)/187) (count 5); three counts of attempted voluntary manslaughter of a peace officer (§§ 664/192, subd. (a)) (counts 4, 8, 9); and one count of felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 10). The jury found true the allegation that appellant personally used a firearm as alleged in counts 4, 5, 8, and 9. After appellant waived his right to a jury trial on the allegations that he had suffered a prior felony conviction and prison term, the trial court found the allegations true.
All further references to statutes are to the Penal Code unless stated otherwise.
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Appellant received a total sentence of life plus 45 years two months. In count 5, the trial court imposed a life sentence and 20 years for the firearm enhancement under section 12022.53, subdivision (c). In count 4, the trial court imposed a consecutive upper term of five years six months and the upper term of 10 years for the firearm enhancement under section 12022.5. In each of counts 8 and 9, the trial court imposed a consecutive term of one year (one-third the midterm) and three years four months (one-third the midterm) on the enhancement under section 12022.5. In count 10, the trial court imposed a term of eight months and stayed the sentence under section 654. The trial court imposed one consecutive year for appellant's prior prison term. (§ 667.5, subd. (b).) The trial court gave a statement of reasons for its sentencing decisions. Appellant was awarded 791 days of actual custody credits and 118 conduct credit days.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an "Opening Brief" in which no issues were raised. On May 26, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. We granted an extension of time to file a supplemental brief to July 15, 2011. No response has been received to date.
FACTS
Appellant was charged in two separate shooting incidents. The first incident took place on July 19, 2008, and resulted in appellant's being charged with the murder of Andres Vasquez and the attempted murder of Manuel Salas in counts 1 and 2, respectively, and with being a felon in possession of a firearm in count 3. The trial court denied appellant's motion to have separate trials for the two separate shooting incidents. At trial, appellant testified that he did not shoot anyone on July 19, 2008. The witnesses who had identified him recanted at trial and at the preliminary hearing. The jury acquitted appellant of the charges from that incident, which was a drive-by shooting into a car occupied by the victims.
Detective Gina Kolowski of the Los Angeles County Sheriff's Department testified as a gang expert. She testified that appellant was an admitted member of the Varrio Norwalk gang.
Based on information implicating appellant as the perpetrator of the July 19, 2008 shooting, nine sheriff's deputies from the major crimes unit of the Los Angeles County Sheriff's Department went in search of appellant at a Downey home where appellant's girlfriend resided on August 18, 2008. The deputies all wore flack vests with the word "Sheriff" on the back and front and a sheriff's star on the front. Appellant was seen standing on the driveway near the sidewalk at approximately 6:00 p.m. Detective Juan Alvarado shouted, "Stop sheriff department [sic]. Let me see your hands." Detective Francis Espeleta also shouted that command. After a second's hesitation, appellant started running down the driveway toward the rear of the property. Detective Alvarado and the other members of the team ran after appellant. Detective Alvarado saw appellant reach towards his waistband and pull out a gun. Appellant fired a shot in the direction of Detective Alvarado and the other deputies. Appellant then slowed down, turned and faced Detective Alvarado and the other deputies in a combat stance, and fired another shot. Detective Alvarado heard the bullet pass between his left ear and Detective Tony Leonard. Detective Alvarado then fired three shots at appellant. Appellant ran behind a garage.
Detective Alvarado heard the officers behind him firing shots at appellant. Detective Alvarado then heard more shots from the area behind the garage, where he knew there were two more deputies stationed, Detectives Carlos Nuques and Kimberly Ponce. A short time later, Detective Alvarado heard Detective Nuques broadcast that the suspect was "down," and that he was calling for paramedics. Detective Alvarado went to the spot where appellant was lying in a pool of blood with his hand underneath his body. Detective Alvarado pulled out appellant's hand and handcuffed him after kicking aside the gun that had been underneath appellant's body.
Deputy Marc King was one of the deputies who followed in pursuit of appellant as he ran down the driveway. Deputies Alvarado, Espeleta, and Leonard were in front of him. Deputy King shouted at appellant and told him to freeze. Deputy King heard two gunshots being fired in the direction of him and the other deputies. He then heard two more as appellant stopped and crouched.
Sergeant Richard Biddle of the Sheriff's Department executed a search warrant for the house where appellant was staying. Deputies found a gun cleaning kit, a shot glass and a Tupperware container containing methamphetamine, a glass pipe for methamphetamine, and various types of ammunition. The deputies also found a framed photograph of several gang members and a brown hat bearing the letters "VNWK."
Appellant testified that he had been cleaning house, drinking beer, and getting high on crystal methamphetamine on the day the deputies arrived. Ingesting methamphetamine made him feel anxious and "paranoid." He went to the mailboxes carrying $1,000 in cash on his person. He had previously been accosted by three men who tried to jump him and take his money. Because of that incident, he began carrying a gun. While at the mailboxes at the front of the house, he saw Deputy King, who was bald, and had tattoos. He was carrying a shotgun. Appellant did not know Deputy King was a police officer because he was not wearing a uniform. He looked like a "south sider gang member." Appellant ran up the driveway and heard footsteps behind him. He reached for his gun as shots rang out behind him. He fired two gunshots in return because he was afraid. He never heard anyone shout "stop," or "sheriff" or "police." When he ran to the back in order to get away, others were shooting at him. He jumped the wall at the back of the house. He did not fire his gun again.
Lori Melendez, who lived down the driveway from the house where appellant was staying, testified at trial that she heard gunshots but did not hear anyone shouting "police" or "sheriff." She heard someone shouting "There he is. Get him." When she went outside after the shooting, she did not see any police officers wearing sheriff's outfits. She saw one person with a gun who looked like a "biker guy." He had many tattoos and was wearing shorts and a tank top. She later found out his name was "King." The people she saw outside did not look like the police.
Ruben Arebalo, who was visiting the Melendez residence, saw three or four people who looked like bikers walking up the driveway. One of the men had a bald head, sleeveless shirt, and a lot of tattoos. Arebalo heard someone say, "There he is," followed by gunshots. He never heard anyone identify themselves as the police or sheriffs or shout "stop." He did not see anyone dressed in a sheriff's flack vest. Deputy Fabian Salazar interviewed Arebalo after the shooting, and Arebalo said he was in the garage watching television when he saw two or three deputies running in his direction. He did not say anything about the deputies looking like bikers.
Jason McSweeney, Melendez's son-in-law, saw Deputy King before the shooting. McSweeney described the deputy as bald with tattoos. Deputy King was wearing a tank top and not a police uniform. He later saw Deputy King with a gun pointed at his house.
We have examined the entire record, and we are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.