Filed 4/30/07 P. v. Hernandez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed.

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Josiah Hernandez appeals from a judgment entered following his guilty pleas to three counts of attempted murder, counts 1, 2, and 3 (Pen. Code,  664/187) and his admission that he personally discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d).[1] Pursuant to his negotiated plea, he was sentenced on count 1 to prison for the low term of five years plus 25 years to life for the firearm enhancement.[2] On counts 2 and 3 he was sentenced to concurrent five-year terms.

The evidence at the preliminary hearing established that on September 4, 2004, at approximately 11:30 p.m., Joseph Harger and his friends Leo Bland and Christopher Barrios were waiting for their food at a Wienerschnitzel restaurant on North Gaffey Street in San Pedro when Mr. Harger was shot in the arm. There were too many shots for him to determine the distance from which the shots were fired, and he dropped to the ground and ran away in order to avoid the other gunshots. Mr. Bland also heard several gunshots and tried to get out of the way. He was not sure who shot at him. Mr. Barrios also had to get out of the way of the shots that were heard. Prior to the shooting, Davina Diviak was driving in the area with her boyfriend Neopoldo, and appellant and codefendant were riding in the backseat. As she passed the Wienerschnitzel, one of the backseat passengers said, There he is, indicating a male by the Wienerschnitzel. One of the occupants in the back seat told her to make a series of turns and to pull up to the corner. Appellant and codefendant left the car and walked down the alley toward the restaurant. After several gunshots, appellant and codefendant returned to the car and told her to take them to a house on Crestwood. Earlier in the day, Ms. Diviaks boyfriend had seen appellant with a blue steel semiautomatic handgun, possibly a nine-millimeter. The codefendant had a .32-caliber handgun.

At a residence on Crestwood in San Pedro, Arthur Lucas was washing his grandfathers motorcycle when appellant came by. After a conversation, appellant got on the motorcycle and drove it away without permission.

Following his arrest, appellant admitted being one of the shooters in the Wienerschnitzel incident and possessing the nine-millimeter handgun. He admitted he took the motorcycle and sold it for $250 because he planned on leaving California to avoid people who wanted to harm him.

Codefendant Williams admitted firing several shots in the direction of the victims but denied trying to shoot anyone and said he aimed at the drive-thru order box.

On May 24, 2006, appellant filed a motion to withdraw his plea, claiming he had been in a troubled mental state and pled guilty only because his father wanted him to do so. Following the denial of his motion, he was sentenced.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On November 13, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On December 4, 2006, pursuant to his request, appellant was granted an extension to and including February 1, 2007 to file a supplemental brief. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] Appellant and codefendant Jerome Edward Williams were charged in counts 1, 2, and 3 respectively with the attempted murders of Joseph Harger, Leo Bland and Christopher Barrios. In count 1, it was alleged they personally and intentionally discharged a firearm within the meaning of Penal Code sections 12022.53, subdivisions (b), (c) and (d). In counts 2 and 3, it was alleged they personally and intentionally discharged a firearm within the meaning of Penal Code sections 12022.53, subdivisions (b) and (c). Appellant also was charged with grand theft of personal property, count 4 (Pen. Code, 487, subd. (a)) and being a felon in possession of a firearm, count 5 (Pen. Code,  12021, subd. (a)(1).)

[2] The firearm enhancement contained in Penal Code section 12022.53, subdivision (d) provides in pertinent part, Notwithstanding any other provision of law, any person who, in the commission of [attempted murder] personally and intentionally discharges a firearm and proximately causes great bodily injury. . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.