Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge, No. PA059868
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Mario Cruz Mendibles appeals from the judgment entered following a jury trial which resulted in his conviction of five counts of second degree robbery (Pen. Code, § 211), during the commission of three of which he personally used a firearm (§ 12022.53, subd. (b)), assault with a semiautomatic firearm (§ 245, subd. (b)), during which he personally used a firearm (§ 12022.5), three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)), and his admission that he had previously served a prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Mendibles to 35 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Count 8.
On August 9, 2007, Edgar Reyes was working at the Genesis Recycling Center on Woodman Avenue in Los Angeles. Reyes paid customers cash for their recyclable materials. He kept the cash in his pocket so that he could easily make change.
At approximately 10:30 that morning, Reyes was approached by Mendibles. Mendibles pulled up his shirt and showed Reyes that he had a semiautomatic handgun in his waistband, then told Reyes to “give [him] the money.” Reyes, afraid for his safety, gave to Mendibles between $350 and $450. After taking Reyes money, Mendibles got into a white car and drove off. When asked if Mendibles had any unique features, Reyes indicated that he had a tattoo of the name “Diana” on his neck. When he was later shown a photographic lineup, Reyes identified a picture of Mendibles as that of the man who had robbed him. Reyes again identified Mendibles as the robber at trial.
b. Count 9.
On August 9, 2007, Jose Bravo worked at the K & M Recyling company on Woodman Avenue in Los Angeles. At approximately 3:40 that afternoon, Bravo, who was about to close, was approached from behind by Mendibles. Mendibles grabbed Bravo’s arm, pulled it back, then pushed his face against the side of one of the containers. Mendibles told Bravo to “give him the money.” When Bravo told Mendibles that he did not have any money, Mendibles reached into Bravo’s pocket and took between $80 and $90. After taking the money, Mendibles pulled up his shirt and showed Bravo that he had a gun tucked into his waistband. After then taking some small boxes in which change was kept, Mendibles got into a white car and drove away. Throughout the incident, Bravo was “afraid for [his] safety.”
c. Count 1.
Ovakim Terteryan worked at Granada Hills Recycling in Los Angeles during the summer of 2007. At approximately 2:50 p.m. on August 10, a white car pulled up, Mendibles got out of the car, approached Terteryan and asked him how much an aluminum can was worth. Before Terteryan could respond, Mendibles had lifted his shirt and shown Terteryan a handgun tucked into his waistband. Mendibles told Terteryan to “give [him] the money,” then again showed Terteryan the gun. When Terteryan told Mendibles that he had no money, Mendibles told Terteryan that unless he gave him the money, Mendibles would hit Terteryan with the gun. Terteryan still insisted that he had no money and Mendibles pushed him. Terteryan pushed Mendibles back and again told Mendibles he had no money. After he had asked for the money for the third time, Mendibles threatened to shoot Terteryan. Although he was frightened, Terteryan still insisted he did not have any money. Mendibles then went to the cash register and picked up the whole machine. When Terteryan attempted to stop Mendibles, Mendibles hit Terteryan in the cheek with his elbow. Mendibles successfully removed the cash register, which contained approximately $600, got into the passenger seat of a white car and was driven away.
Approximately two weeks later, Terteryan identififed a photograph of Mendibles as that of the man who had attacked him and taken the cash register. Terteryan again identified Mendibles at trial.
d. Count 10.
Raymundo Lopez Garcia was working at Rios Recycling on Foothill Boulevard in Los Angeles on August 13, 2007. At approximately 11:15 a.m. that day, Mendibles walked into the recycling center, approached Garcia and, in a “menacing way,” told him that he wanted money. Mendibles, who was accompanied by another man, threatened to shoot Garcia and Garcia, who never saw a gun but believed that Mendibles had one, allowed Mendibles to take the approximately $500 that he had in his pocket. After taking Garcia’s money, the two men got into a white car and drove off. As the car pulled away, Garcia took a picture of it with his cell phone. He later sent the picture to a police officer. When asked if he had noticed anything unusual about Mendibles, Garcia indicated that Mendibles had a tattoo of a face on the right side of his neck.
e. Count 2.
At approximately 8:30 a.m. on August 16, 2007, Glendy Gonzalez was working at S & G Recycling on Glenoaks in Los Angeles. Gonzalez was sitting behind the desk at the recycling center when Mendibles approached her and asked how much she paid per load. As Gonzalez was preparing to answer, Mendibles moved over to Gonzalez’s side and told her to “give [him] the money.” Gonzalez attempted to “say no,” but then Mendibles “reached into his belt.” Gonzalez, believing that Mendibles had a gun, opened the drawer and moved back. Mendibles took all the money. Gonzalez, who had been afraid for her safety throughout the incident, walked away. She did not see where Mendibles went after he left the recycling center.
Approximately one week after the incident, police officers showed Gonzalez a photographic lineup. Gonzalez chose a picture of Mendibles and indicated that he was the man who had robbed her. In addition, Gonzalez remembered that Mendibles had a lot of tattoos, including one that “said SF” on his lower neck.
f. Count 3.
On the morning of August 16, 2007, Mario Mendoza was working at the S & G Recycling Center on Glenoaks Boulevard in Los Angeles. Mendoza saw Mendibles and two other individuals in a white car. While Mendoza was “in the recycling material[s],” Mendibles got out of the car and approached a trailer in the facility. The next thing Mendoza saw was Mendibles leaving the area “with money in his hand.” When Mendoza asked Mendibles “what was happening,” Mendibles pulled a black,.38 caliber automatic handgun from his waistband, then accidentally dropped it onto the pavement. Both Mendibles and Mendoza reached for the gun, but Mendibles quickly picked it up. After retrieving the weapon, Mendibles pointed it at Mendoza and backed up until he reached the white car. He got back into the car and it drove off. Mendoza got into his own car and followed the white car until it parked at a nearby apartment building.
When he was asked if Mendibles had any identifying features, Mendoza indicated that Mendibles had a tattoo on his neck. When police officers showed Mendoza a photographic lineup, Mendoza identified a picture of Mendibles as that of the man who had pointed the gun at him.
On August 16, 2007, Nabil Alchoairi was working at a business on Glenoaks Boulevard in Los Angeles which is next door to the S & G Recycling Center. At approximately 7:00 that morning, Alchoairi saw a white Acura with tinted windows driving slowly past the parking lot. Alchoairi waited for the car to pass by and park in the far end of the lot before opening his business. When Alchoairi checked a couple of times later in the morning, the car was still there.
Los Angeles Police Officer Egon Ponce responded to a call from the S & G Recycling Center. There he spoke with Mendoza, who directed him to an apartment complex on Roxford Street in Sylmar.
After Deputy Ponce completed his testimony, the trial court asked Mendibles to remove his shirt and tie. Mendibles did so, revealing on the back of his head a tattoo of the letters “SF,” a tattoo on his lower neck spelling out the name “Diana,” a tattoo on the back of his neck spelling out the name “Maria,” a tattoo on the right side of his neck depicting “a face of an individual with a large moustache,” a tattoo on his back spelling out the word “Sanfer,” a tattoo just under his chin spelling out the word “animal” in script and, below that, another tattoo indicating the letters “SF.” On his upper body, below the “SF,” Mendibles had tattoos depicting the faces of two children. Mendibles had additional tattoos on his arms, upper back and hands, several of which referred to “SF” or “SFV.”
On August 24, 2007, Los Angeles Police Officer Anthony Daniel, accompanied by several other officers, went to the apartment building shown to police by Mendoza. When police officers called out to him, Mendibles came out of the apartment’s garage.
2. Procedural history.
Following a preliminary hearing, on January 22, 2009 Mendibles was charged by information with five counts of second degree robbery (§ 211), during four of which he personally used a firearm (§ 12022.53, subd. (b)) and one of which a principal was armed with a firearm (§ 12022, subd. (a)(1)), one count of assault with a semiautomatic firearm (§ 245, subd. (b)), during which he personally used a firearm (§ 12022.5, subds. (a) & (b)) and three counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). It was further alleged as to each count that Mendibles previously had suffered a prior felony conviction within the meaning of the Three Strikes law (§ 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
Mendibles made two Marsden motions; one on May 27, 2008 and one on October 16, 2008. At the May 27, 2008 hearing, Mendibles indicated that, although he had asked her on several occasions, his counsel had failed to provide him with a copy of the transcript of the preliminary hearing. After indicating that he was not entitled to the transcript, the trial court denied the motion. At the October 16, 2008 hearing, Mendibles argued that his counsel had no trial strategy; he had made no “attempts to file any kind of motions or have any strikes stricken.” After hearing counsel’s argument that the matter primarily involved issues of identification, the trial court determined counsel had made appropriate tactical decisions and denied the motion.
People v. Marsden (1970) 2 Cal.3d 118.
Following presentation of the prosecution’s case, the court, on its own motion, dismissed the allegation that a principal was armed with a handgun as to count 10, the robbery of Garcia (§ 1118.1). The court stated: “[T]here is an armed allegation under 12022[,] subdivision (a)[,] subdivision (1). The witness as to count 10 was Raymundo Lopez Garcia. According to his testimony the defendant said he was going to get a gun, then said he had a gun, and the victim did not see a gun.” In addition, after hearing argument from the People, the trial court dismissed the personal use of a firearm allegation made pursuant to section 12022.53, subdivision (b) as to count 2. The court noted that the “witness to that count, the victim [Glendy Gonzalez], did not see a handgun displayed at all.” Finally, the trial court struck pursuant to section 1385 the firearm “use enhancement” as alleged in count 9, the robbery of Jose Bravo. The court indicated that such an enhancement was “duplicative.”
The trial court struck the Three Strikes allegations (§ 1385). With regard to the allegation Mendibles had served a prior prison term, after waiving his right to a court or jury trial, the right to confront and cross-examine the witnesses against him, the right to subpoena witnesses and to present a defense, and his privilege against self-incrimination, Mendibles admitted having previously served a prison term within the meaning of section 667.5, subdivision (b).
After stating that it had read and considered the probation report, the trial court indicated that “[i]n determining whether [it] should impose the high term as to the base term, [it was] reminded of” aggravating and mitigating factors contained in the California Rules of Court. (See Cal. Rules of Court, rules 4.421, 4.423.) The court found “that because of [Mendibles’s] record, which is excessive, and [because] he was on probation at the time of [the] commission of this offense, the high term [was] warranted. [¶] As to consecutive sentences, [the trial court was] guided by California Rules of Court[,] [rule] 4.425. [It found] that these crimes all concern different victims, and as to many of these crimes they occurred at different places and times. Consequently, the court [determined it was] going to utilize its discretion and sentence the defendant consecutively according to the law.”
The trial court chose count 3, assault with a semiautomatic firearm, as the base term and imposed the high term of nine years in prison. For Mendibles’s personal use of a firearm during the offense, the trial court imposed a consecutive term of 10 years. As to count 1, the robbery of Terteryan, the court imposed a consecutive sentence of one-third the mid-term, or one year in prison. For Mendibles’s personal use of a firearm during the offense, the trial court imposed a consecutive sentence of one-third of ten years, or three years, four months in prison.
As to the robbery of Glendy Gonzalez as alleged in count 2, the trial court imposed a consecutive term of one-third the mid-term, or one year in prison. For count 6, the possession of a firearm by a felon, the trial court imposed the upper term of three years in state prison, then stayed the sentence pursuant to section 654. As to count 7, possession of a firearm by a felon, the trial court imposed the upper term sentence of three years, then stayed the sentence pursuant to section 654.
Section 654 provides in relevant part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
With regard to count 8, the robbery of Edgar Reyes, the trial court imposed a consecutive term of one-third the mid-term, or one year in state prison. For Mendibles’s personal use of a firearm during the offense, the court imposed a consecutive enhancement of one-third of ten years, or three years and four months. For the robbery of Jose Bravo as alleged in count 9, the trial court sentenced Mendibles to a consecutive term of one-third the mid-term, or one year in state prison. For Mendibles’s use of a firearm during the offense, the court imposed a consecutive term of three years, four months in prison. For the robbery of Raymundo Lopez Garcia as alleged in count 10, the court imposed a term of one year in state prison. As to count 11, possession of a firearm by a felon, the trial court imposed the upper term of three years in prison, then stayed the term pursuant to section 654. Finally, for the finding Mendibles previously had served a prison term within the meaning of section 667.5, subdivision (b), the trial court imposed a consecutive term of one year in prison. In total, the trial court sentenced Mendibles to 35 years in prison.
The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), and a $180 security fee (§ 1465.8, subd. (a)(1)). In addition, the trial court imposed direct restitution as follows: $100 for Ovakim Terteryan, $635 to Granada Hills Recycling, $400 to Genesis Recycling, $100 to K & M Recycling, and $400 to Rios Recycling.
Mendibles was awarded presentence custody credit for 456 days actually served and 68 days of conduct credit (§ 12022.53, subd. (i)), for a total of 524 days.
On November 21, 2008, Mendibles filed a timely notice of appeal.
This court appointed counsel to represent Mendibles on appeal on February 26, 2009.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed July 29, 2009, the clerk of this court advised Mendibles to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.