Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FRE006793 & FRE007327, David Cohn, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant Ramiro Trujillo guilty of attempted willful and premeditated murder (Pen. Code, §§ 664 and 187, subd. (a), count 1), and made a special finding that defendant committed the attempted murder willfully, deliberately, and with premeditation. (§ 664, subd. (a).) The jury also found true the allegations that, in the commission of the offense, defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). The trial court sentenced defendant to life for the attempted murder, plus 20 years for the firearm enhancement.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed a notice of appeal and simply checked the box stating that the appeal “follow[ed] [a] jury or court trial.” The notice did not set forth any basis for the appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial established the following:
Defendant and Jane Doe were married and had three children. Doe and the children moved out of the family home because defendant started throwing things at Doe and hitting her. In July 2004, Doe and the children were living at her mother’s house. On July 21, 2004, defendant went to Doe’s mother’s home. Doe’s nephew told Doe that defendant was there. She picked up her baby and went to the front door. She opened the wood door but kept the metal security door closed. Defendant asked her to step outside because he had to tell her something, but she refused. Defendant pulled his shirt up and revealed a silver gun in the waistband of his pants. He told her, “[T]his is what I have for you” and pulled the gun out. Doe thought he was just trying to scare her, so she said, “oh, please,” and closed the door gently. Defendant kicked the security door and told Doe to open it. Defendant fired gunshots at the door. Doe heard some “popping” sounds from the gunshots and then saw that she was bleeding. She told her children to call 911, and defendant took off running. The paramedics arrived soon thereafter and took Doe to the hospital. Doe suffered three entrance wounds and two exit wounds from the gunshots. She still had one bullet left in her arm at the time of trial.
After the parties finished presenting the evidence at trial, defense counsel requested a jury instruction regarding shooting at an inhabited dwelling house (§ 246) as a lesser included offense of attempted murder. The parties discussed the matter in chambers and came to an agreement. Nonetheless, defense counsel stated his objection for the record. The court refused the requested instruction on the record, stating that section 246 was not a lesser included offense of attempted murder but was, at most, a lesser related offense.
After the matter was submitted to the jury for deliberations, it was discovered that Juror No. 9 had overheard a discussion of the case among Doe, a victim’s rights advocate and an attorney. Juror No. 9 did not tell any of the other jurors what she heard. The prosecutor sought to have Juror No. 9 removed from the jury, but defense counsel did not want her removed. The court determined that Juror No. 9 clearly had a different view of what the outcome of the trial should be, based upon the information she received outside of trial. The court excused Juror No. 9. Subsequently, defendant requested a mistrial. After an extensive discussion, the court denied the motion for a mistrial, noting that it had admonished the jury to decide the case based only on the evidence presented at trial, and there was no indication the jury would not be able to follow that instruction.
DISCUSSION
Dependant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and two potential arguable issues, including whether the court correctly refused defendant’s request that the jury be instructed regarding the crime of shooting at an inhabited dwelling as a lesser included offense of attempted murder, and whether the court properly denied his motion for mistrial after it removed Juror No. 9. Counsel has also requested this court to undertake a review of the entire record. We note that prior to filing the Wende brief, appellate counsel filed a letter brief with the trial court requesting it to correct the total aggregate sentence listed on the abstract of judgment and the amount of presentence custody credits awarded to defendant at the time of sentencing. The trial court corrected the errors.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no remaining arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.