Opinion
A118323
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. OSCAR LIONEL MAYORGA, Defendant and Appellant.
NOT TO BE PUBLISHED
Counsel appointed for defendant Oscar Lionel Mayorga has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but he elected not to do so. We have conducted that review, conclude there are no arguable issues, and affirm.
BACKGROUND
A jury found defendant guilty as charged of attempted second degree robbery based upon the following evidence:
The employee of a San Bruno liquor store testified that sometime after 1:00 a.m. on April 8, 2006, defendant entered and bought a pack of cigarettes. Later, when the employee was counting the cash in the register in preparation for the stores 2:00 a.m. closing, defendant came back to the counter, produced what appeared to be a gun, and demanded money.
Defendant emphasized his demand by grabbing the one other person present in a headlock and pointing the gun at the employee. It was when defendant pulled the trigger that the employee realized that he was not threatened with an actual bullet-firing firearm. Possibly because he realized that his threat of deadly force was now revealed to be hollow, defendant fled. A piece of paper fell to floor as he did so. The employee made a positive identification of defendant in court.
Subsequent forensic investigation disclosed that defendants fingerprints were on the dropped paper. Police went to defendants apartment and discovered the gun, which defendant admitted belonged to him. Some time later, defendant was interviewed by a detective in the San Mateo County Jail. After receiving the admonitions required by Miranda v. Arizona (1966) 384 U.S. 436, defendant agreed to speak with the detective. Defendant initially denied being in San Bruno since 2005. After the detective told him "hed been identified by fingerprints and by the victim," defendant made an inculpatory statement amounting to a confession. The statement was reduced to writing by defendant. The written statement was received in evidence at the trial.
At various points in the record the "gun" was characterized as a "BB gun," and a "replica gun." Defendant himself reportedly called it "a broken BB gun."
The operative part of defendants written statement was "Out of unthoughtful thinking, I willingly walked into the liquor store and attempted to take some money. I only asked for $20.00, but I do know it was wrong. I got scared and just took off running out of the liquor store." No weapon is mentioned in the statement.
Defendant testified in his own behalf. He did not repudiate his confession, nor did he dispute the prosecutions evidence except on two points. First, he insisted that the BB gun was unloaded. Second, he did not put a headlock on the other person.
The jury deliberated for only 51 minutes before returning its verdict of guilty.
At the sentencing hearing, defendant did not apply for probation. As his counsel stated, "realistically speaking, the only question before this Court . . . is whether or not a sentence in the California Department of Corrections shall be imposed concurrently or consecutively to the sentence he is currently serving" for, among other offenses, felony assault. After hearing argument, the court imposed a term of eight months, one-third of the mid term, which was to be served "consecutive to any other sentence that he is serving in state prison."
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant was at all times represented by competent counsel who ably protected his interests.
The jurys verdict is supported by substantial evidence.
No ruling by the trial court admitting evidence, or overruling an objection, amounts to an abuse of its discretion.
No improper or inappropriate instructions were given to the jury.
The trial court did not impose an unauthorized sentence.
DISPOSITION
The judgment of conviction is affirmed.
We concur:
Kline, P.J.
Haerle, J.