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People v. Serrano

California Court of Appeals, Second District, Eighth Division
Feb 3, 2011
No. B222975 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA 083899, Tia Fisher, Judge.

Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


FLIER, J.

Sergio Serrano appeals from a judgment of conviction after a jury found him guilty of two counts of assault with a semiautomatic firearm and one count of making criminal threats.

STATEMENT OF FACTS

Appellant was charged with seven felonies in an amended and consolidated information arising from two separate incidents.

Four charges arose from an incident that occurred in May 2008. On that date, at closing time appellant and his friends were asked to leave the Sunset Room, a bar in Hacienda Heights. Appellant and his friends at first refused to leave the bar. Eventually, they were escorted outside to the parking lot by the two victims, security guards Eric Tovar and Alfred Zambrano. After being escorted out of the bar, appellant drove up to the bar’s entrance in a truck with his friends. Appellant got out of the truck, and he took out a semiautomatic gun wrapped in a bandana from the driver’s side door panel. He approached Tovar and Zambrano, saying, “You guys are f done. You don’t know who you are f with.” Appellant chambered the gun and pointed it back and forth between Tovar and Zambrano. Fearing he would be shot, Tovar unholstered his own gun and pointed it at appellant’s chest. At that point, appellant’s friend intervened pushing his arm down. Appellant’s friends rushed him back into the truck, and they all left the scene.

Three charges arose from an incident that occurred several months later, in October 2008. While out on bail for the May incident, appellant was a passenger in a vehicle that sheriff’s deputies stopped for a traffic violation. As the deputies approached the stopped vehicle, appellant tossed a black semiautomatic handgun out of the passenger window. The deputies questioned appellant about what he threw out the window, and he responded, “Nothing, I don’t know what you are talking about.” The deputies found a gun on the grass about eight feet away from the passenger window. The gun had been stolen from a deputy sheriff’s residence in April 2008. The deputies found the firearm fully loaded, with one round in the chamber and nine rounds in the magazine.

PROCEDURAL HISTORY

In the amended and consolidated information, appellant was charged with: (1) assault with a semiautomatic firearm as to Tovar (Pen. Code, § 245, subd. (b), count one); (2) making criminal threats as to Tovar (§ 422, count two); (3) assault with a semiautomatic firearm as to Zambrano (§ 245, subd. (b), count three); (4) making criminal threats as to Zambrano (§ 422, count four); (5) receiving stolen property (§ 496, subd. (a), count five); (6) having a concealed firearm on his person (§ 12025, subd. (a)(2), count six); and (7) being an occupant with a concealed firearm in a vehicle (§ 12025, subd. (a)(3), count seven). As to counts one and three, it was further alleged appellant personally used a firearm in the commission of the offense (§§ 12022.5, subds. (a) & (d), 1192.7, subd. (c) & 667.5, subd. (c).) The information, as amended, further alleged as to counts six and seven that the firearm was stolen and appellant knew and reasonably should have known that it was stolen. It was also alleged, as to counts five, six and seven, that appellant was out of custody on bail or on his own recognizance when he committed the crimes (§ 12022.1).

All further statutory references are to the Penal Code unless otherwise indicated.

A jury trial began on July 1, 2009. The court granted a defense motion to bifurcate the allegations in counts five through seven that appellant was out of custody on bail or his own recognizance from the issue of guilt, or lack of guilt, and appellant waived his right to a have a jury trial on the bifurcated issues. Additionally, the court allowed the prosecution to further amend counts two and four to add an allegation that appellant personally used a firearm in the commission of the crime pursuant to section 12022.5, subdivisions (a) and (d); it then denied appellant’s motion to set aside such allegations having reviewed the transcript of the preliminary hearing.

The court granted appellant’s motion to preclude evidence of gang affiliation unless the relevance of such evidence was shown by the testimony at trial.

Appellant moved for judgment of acquittal with respect to counts four, five, six and seven at the close of the prosecution’s evidence. The trial court granted appellant’s motion as to counts four, six and seven, i.e., making a criminal threat against Zambrano (count four), having a concealed firearm on his person (count six) and being an occupant in a vehicle with a concealed firearm (count seven). However, the court denied appellant’s motion for acquittal as to the charge of receiving stolen property (count five).

Appellant then moved for mistrial, on the basis that handwritten notes of the investigating detective containing potentially exculpatory material were not produced prior to trial. The court denied the motion for mistrial and denied appellant’s further request to instruct the jury under CALCRIM No. 306. However, with the prosecution’s concurrence, it allowed appellant to introduce hearsay evidence that the alleged driver of the vehicle in the October incident had been the victim of a shooting in September 2008. The court denied appellant’s request to introduce evidence of the date the prosecution turned over the materials, finding the turnover date had no probative value and, in any case, the jury had witnessed the detective handing over his notes to defense counsel at trial.

CALCRIM No. 306 reads, in pertinent part: “Failure to follow this rule [for timely disclosure of evidence] may deny the other side a chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.” The court stated it did not believe defense counsel’s ability to adequately and effectively defend his client was compromised by the late turnover of the detective’s handwritten notes.

At the close of evidence, defense counsel asked the court to instruct the jury on a lesser included offense of simple assault. The court denied the request. It ruled there was no substantial evidence to support such an instruction and the theory of the defense was that appellant was not the perpetrator.

The jury found appellant guilty of assault with a semiautomatic firearm upon Tovar (count one), making criminal threats against Tovar (count two) and assault with a semiautomatic firearm upon Zambrano (count three), and it found the allegations of personal use of a firearm to be true. The jury further found appellant not guilty of the crime of receiving stolen property (count five).

Appellant moved for a new trial. However, appellant’s private counsel declared a conflict of interest due to advice he gave appellant concerning an offer of settlement the prosecution made during trial. With appellant’s consent, the trial court appointed the public defender, and later the alternate public defender when the public defender declared a conflict of interest, as counsel to represent appellant on this issue only. After the alternate public defender declined to file a motion for new trial on the ineffective assistance of counsel issue, the court denied the motion for new trial.

Citing substantial aggravating factors in appellant’s commission of the offenses, the prosecution asked the court to sentence appellant to a total of 24 years four months in state prison. Appellant in turn argued that the imposition of more than the minimum sentence of six years would punish him for exercising his constitutional right to a jury trial, particularly in light of the prosecution’s settlement offer during trial of three years imprisonment.

The court denied appellant probation. It selected count one as the principal offense and sentenced appellant as to that count to 10 years in state prison, consisting of the presumptive midterm of six years, plus the presumptive midterm of four years for the personal use of a firearm. As to count two, appellant received six years in state prison, consisting of the midterm of two years, plus four years for the use of a firearm. For count three, the court sentenced appellant to 10 years in state prison, consisting of the mid-term of six years, plus four years for use of the firearm. The court ordered the sentences to run concurrently. Appellant was given credit for 638 days in custody, 555 actual custody and 83 days of good time/work time. He was ordered to pay a restitution fine of $200, a court security fee of $90, a criminal conviction assessment of $90 and a stayed parole restitution fine of $200.

Appellant timely appealed the judgment.

DISCUSSION

We appointed counsel to represent appellant on this appeal. After examining the record, appellant’s appointed counsel submitted a brief on appellant’s behalf pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442, raising no issues. Counsel stated this court should accordingly conduct a review of the entire record to determine whether the record reveals any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. On July 26, 2010, we advised appellant he had the right within 30 days to submit by brief or letter any grounds of appeal contentions, or argument that appellant wishes this court to consider. The court thereafter extended this time to November 1, 2010. That time has passed, and appellant has not submitted any brief or letter to the court raising any issues or argument.

We have examined the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; People v. Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40 Cal.4th 106, 123-124.) However, the abstract of judgment incorrectly reflects that an enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c) was “charged and found to be true.” This is an obvious error because such a violation was neither charged nor found by the jury to be true. The abstract of judgment must be corrected accordingly.

DISPOSITION

The judgment is affirmed, and the trial court is directed to correct the abstract of judgment to delete any reference to appellant being convicted of a violation of Health and Safety Code section 11370.2, subdivision (c) and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.

We concur: RUBIN, Acting P.J., GRIMES, J.


Summaries of

People v. Serrano

California Court of Appeals, Second District, Eighth Division
Feb 3, 2011
No. B222975 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Serrano

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SERGIO SERRANO, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Feb 3, 2011

Citations

No. B222975 (Cal. Ct. App. Feb. 3, 2011)