P. v. Burciaga

Filed 6/16/06 P. v. Burciaga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary Orozco, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On February 1, 2005, an information was filed in the Superior Court of Fresno County charging appellant Thomas Miguel Burciaga with count I, second degree robbery of Brandon Ollis on January 30, 2004 (Pen. Code,^[1] § 211), and counts II through V, second degree robbery of, respectively, Danny Schwandt, Michael Perez, Michelle Heltne, and Michael Nemec on February 6, 2004. As to each count, it was alleged appellant personally used a firearm. (§ 12022.53, subd. (b).) Appellant pleaded not guilty and denied the special allegations.

On June 23, 2005, appellant pleaded no contest to counts I and II, admitted that he was vicariously armed with a firearm (§ 12022, subd. (a)(1)), pursuant to a negotiated disposition with a maximum term of four years, and the court dismissed the other charges.

On September 20, 2005, the court denied probation and imposed an aggregate term of four years: as to count I, the midterm of three years with a consecutive one-year term for the firearm enhancement; and as to count II, a concurrent middle term of three years, with the concurrent firearm enhancement stayed. The court awarded 681 days of credit, based on 593 days of actual days and 88 conduct credits. The court ordered appellant to pay a restitution fine of $800 pursuant to section 1202.4, subdivision (b) and an $800 restitution fine pursuant to section 1202.45, but stayed the payment of the section 1202.45 fine subject to the successful completion of parole. The court also imposed a $20 courtroom security fee pursuant to section 1465.8, subdivision (a)(1).

On October 26, 2005, appellant filed a timely notice of appeal.

FACTS

On the evening of January 30, 2004, Brandon Ollis was the manager at the Blockbuster Video store on Dakota and West in Fresno. Around 7:00 p.m., a man entered the store and ordered Ollis to open the register. The man wore a ski mask over his face and carried a handgun, and he ordered the other employees on the floor. Ollis opened the register and the gunman removed the money. The gunman next ordered Ollis to open the safe. Ollis explained there was a 10-minute delay to open the safe and the gunman remarked, "'That's what you told me last time.'" The gunman left the store with $243.42.

The police responded to the store after the gunman escaped. An officer spoke to two witnesses who saw the gunman enter the store, with a ski mask over his face, wearing a red hooded sweatshirt and baggy blue jeans, and holding a .32- or .22-caliber chrome handgun. One of the witnesses followed the gunman as he walked out of the store and turned the corner. The gunman entered the passenger side of a newer-model dark blue Jeep Cherokee. Someone was already sitting in the driver's side, and the vehicle left the area when the gunman entered the car.

Sergeant Curtis Chastain investigated a string of armed robberies which seemed to have been carried out in the same manner. The gunman wore a mask over his face and repeatedly robbed the same businesses, including Kentucky Fried Chicken, Hollywood Video, and Blockbuster Video. Sergeant Chastain assigned undercover officers to various stores, and directed his team to watch for the blue Jeep Cherokee associated with the robbery of Blockbuster Video.

On February 3, 2004, Sergeant Chastain was conducting surveillance at the Kentucky Fried Chicken on Shields and Cedar, which had been previously robbed, when he saw a blue Jeep Cherokee driving in the area. Appellant Thomas Burciaga was the driver and only occupant. Sergeant Chastain followed the Jeep as it pulled into the parking lot of the Burger King on Cedar Avenue. The Jeep parked directly in front of the business, and appellant seemed to look at the counter for about 10 seconds, and then backed out of the parking lot and turned onto Cedar.

Sergeant Chastain and his team continued to maintain surveillance of this blue Jeep, and followed it as it engaged in suspicious activities and repeatedly drove in and out of fast food locations. On other occasions, there were multiple occupants in the vehicle, but they simply looked at the various stores and never left the Jeep.

On the evening of February 5, 2004, Sergeant Chastain followed the blue Jeep as it drove from an apartment complex on Maple to Pacifica Pizza on Bullard Avenue. The Jeep drove through the parking lot, circled through the neighborhood for about three or four minutes, then drove back to the Maple apartments. Sergeant Chastain again observed appellant driving the Jeep.

On the evening of February 6, 2004, Sergeant Chastain's team followed the Jeep from the Maple apartments to Pacifica Pizza on Bullard, but lost the vehicle when it turned into the residential area behind the restaurant. The officers established a perimeter around the area. An officer observed a masked person enter Pacifica Pizza. Sergeant Chastain located the blue Jeep parked in a vacant lot directly behind the restaurant. Sergeant Chastain drove past the Jeep in his unmarked car; appellant was in the driver's seat, the Jeeps's headlights were off, and the engine was running.

Danny Schwandt was the manager of Pacifica Pizza, and his employees were Michel Heltne, Michael Perez, and Michael Nemec. They were working in the restaurant when a masked gunman entered and demanded all the money. The employees turned over the money pouches, and the gunman ordered Schwandt to open the safe in the back office. Schwandt complied, the gunman removed money from the safe, and then left the restaurant.

As the gunman walked out of the restaurant, a gunfight ensued between the police and the gunman. Sergeant Chastain was still parked near the Jeep, and saw the masked gunman running toward the Jeep. The police shot and killed the gunman about 30 yards from the Jeep. The gunman was identified as David Zapata, who was appellant's cousin. Zapata had been in possession of a handgun.

The other officers surrounded the Jeep. Appellant was still in the driver's seat and was taken into custody. Appellant was found in possession of a loaded revolver. Appellant was subsequently questioned and admitted that he drove the get-away vehicle during the Blockbuster Video robbery in January 2004, Zapata paid him $60 or $65 to drive him to and from the robbery, and he knew Zapata was going to rob Pacifica Pizza.

Appellant entered into a negotiated disposition and pleaded no contest to counts I and II, second degree robbery, and admitted he was vicariously armed with a firearm. He was sentenced to the aggregate term of four years.

DISCUSSION

Appellant's appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of February 17, 2006, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.

Our independent review discloses no reasonably arguable appellate issues. "[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Apartment Manager Lawyers.

^* Before Harris, Acting P.J., Levy, J. and Cornell, J.

^[1] All further statutory citations are to the Penal Code unless otherwise indicated.