P. v. Garcia
Filed 4/24/06 P. v. Garcia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977 .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
SECOND APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. ARTURO GARCIA, Defendant and Appellant. | B180359 (Los Angeles County Super. Ct. No. BA251906) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronni B. MacLaren, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Arturo Garcia appeals from his conviction and sentencing for second degree robbery and assault with a deadly weapon or by means of force likely to produce great bodily injury. Appellant argues that the trial court erred in imposing the upper term for the robbery based on factors found by the court, rather than a jury, to be true. In addition, because both charges arose from the robbery of a single victim and the robbery charge was enhanced by a finding of personal use of a deadly weapon, appellant contends that the conviction for assault should be vacated under principles of double jeopardy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Information
Appellant was charged, along with codefendant Jesus Soto, with second degree robbery in violation of Penal Code section 211,[1] a serious felony within the meaning of section 1192.7, subdivision (c). In addition, appellant was charged with personal use of a bat in committing the offense, and Soto was charged with personal use of a knife in committing the offense. Count 2 of the information charged appellant and Soto with assault with a deadly weapon or by means of force likely to produce great bodily injury and referenced the knife as the weapon for purposes of that charge. This offense was also said to be a serious felony under section 1192.7, subdivision (c).
Evidence at Trial
1. Prosecution Case
Salvador Moreno Godoy testified that on July 6, 2003, at around 4:00 o'clock in the morning, he was walking to work on San Pedro Street. He noticed a sporty red car, which he described as a Mustang or Camaro, pull into an alley ahead of him. He saw three people inside the car. He did not see anyone get out of the car. When he got to the corner of 43rd Street and San Pedro, one of the men--later identified as Soto--asked if he knew where a store was. Godoy turned to point toward a nearby liquor store. When Godoy turned back, Soto put a knife to Godoy's neck and told Godoy to give him money. Another man--later identified as appellant--was standing in front of Godoy, a bit to the side. He was holding an aluminum or metal bat in a swinging position. A third person was standing farther away.[2]
Godoy testified that, as far as he could remember, neither appellant nor Soto had facial hair.[3] Appellant was wearing a brown jacket and cap. Soto had on a green or blue trench coat and cap. Godoy believed that Soto was taller than Godoy, and appellant was shorter.[4]
Godoy told Soto he had no money. Soto said â€
