Filed 11/19/13 P .v. Lopez CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MAXX MATTHEW LOPEZ,
Defendant and
Appellant.
F065647
(Super.
Ct. No. F11900989)
THE COURT
name="_ftnref1" title="">*
APPEAL from a judgment of the
Superior Court of
County. Edward Sarkisian, Jr.,
Judge.
Gregory Chappel, under appointment
by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo
A jury convicted appellant, Maxx Matthew Lopez, of
discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a); count
2), assault with a firearm on Dana Macklin (§ 245, subd. (a)(2); count 4),
possession of a firearm within 10 years of a conviction of an enumerated
misdemeanor (§ 29805; count 6), making criminal threats (§ 422; count 7), possession
of ammunition by a person prohibited from owning a firearm due to a prior
conviction (§ 30305, subd. (a); count 8), and resisting, delaying or
obstructing a peace officer (§ 148; count 9). In addition, the jury found true the
following special allegations: in committing
the count 1 offense, appellant personally used a firearm (§ 12022.53, subd.
(b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)),
and in committing the count 4 and count 7 offenses, appellant personally used a
firearm (§ 12022.5, subd. (a)). The
jury acquitted appellant of shooting a firearm at an occupied motor vehicle (§
246; count 3) and assault with a firearm on Nakisha Warwick (§ 245, subd.
(a)(2); count 5).
The court
imposed a prison term of 25 years, consisting of the five-year upper term on
the count 1 substantive offense and 20 years on the accompanying discharging a firearm
enhancement. The court imposed
concurrent three-year upper terms on each of counts 6 and 8; stayed imposition
of sentence on the count 1 personal use of a firearm enhancement (§ 12022.53,
subd. (b)) pursuant to section 12022.53, subdivision (f); and imposed, but
stayed pursuant to section 654, the following upper terms: on count 2, three years; on count 4, four
years on the substantive offense and 10 years on the accompanying enhancement;
and on count 7, three years on the substantive offense and 10 years on the
accompanying enhancement. On count 9,
the court imposed a 365-day county jail term and awarded appellant credit for
365 days served.
Appellant’s appointed appellate
counsel has filed an opening brief
which summarizes the pertinent facts, with citations to the record, raises no
issues, and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Thereafter, on March 22, 2013, appellant, apparently in response to this
court’s invitation to file supplemental briefing, filed a document entitled
“FORMAL NOTICE OF ADDITIONAL BRIEFING VIA SUPPLEMENTAL CLAIMS,†in which he
lists what he claims are “PREJUDICIAL TRIAL ERROR[S]†and, as best we can
determine, faults appellate counsel for not raising these issues. We will treat this document as a supplemental
brief and address appellant’s claims of error below.
On June 21, 2013, this court denied
appellant’s request for an extension of time to file another supplemental
brief, noting that appellant had previously been granted a total of 61 days to
file such an additional supplemental brief.
We affirm.
FACTS
Dana
Macklin testified to the following: Shortly
after midnight on February 21, 2011 (February 21), he was riding in a car
driven by Nakisha Warwick when Warwick drove up to a convenience store (the
store) in Fresno, parked and entered the store. Macklin remained in the car, and while Warwick
was inside the store, a man approached the car and asked Macklin if he wanted
to buy some marijuana. Macklin declined
the offer, at which point the man said, “Break yourself, motherfucker, this is
a robberyâ€; pulled out a handgun, which appeared to be “either a .38 or a .357â€;
pointed it at Macklin’s head; and said, “Man, I’ll kill you.†Macklin had $182 in cash, and the man took it
“out of [Macklin’s] hand.†The man then
ran to a white car and got in on the passenger side, and the car drove away. As the man “was leaving,†he fired a shot.
At that
point, Warwick came out of the store. She
and Macklin then got in the car and, with Macklin driving, drove off. They were “on [their] way home†when Macklin
saw the white car. He gave chase. During the pursuit, Warwick placed a 911 call,
and Macklin spoke to the 911 operator.
A recording of the 911 call was
played for the jury, and the transcript of the call provided to the jury
indicates Macklin told the operator the passenger in the white car was
“shooting at [Macklin].†At trial,
however, appellant testified the shots came from the driver’s side. Approximately six to eight shots were fired.
Both at
trial and at the preliminary hearing,
Macklin did not identify appellant as the man who robbed him.
Rebecca Corchado testified to the
following: Appellant is a friend of
hers. At approximately midnight on
February 21, she drove appellant, who was in the front passenger seat, and two “kids,â€
who were in the back seat, in her white Nissan Altima to a convenience
store/gas station in Fresno. She parked
by a gas pump and appellant went into the store to buy beer. When he came out of the store, he was carrying
a bag containing beer, which he put in the car.
He then walked back toward the store.
Shortly
thereafter, Corchado “heard a girl yelling.â€
She turned around and saw appellant returning to the car, carrying a
gun. Appellant got in the front
passenger seat and said something like “Let’s go.†Corchado drove off. At some point, “some police officers [got]
behind†her and “turn[ed] on their lights and sirens.†Appellant told Corchado where to drive. She was “driving fast†and appellant told her
to “drive faster.†Eventually, appellant
told her to stop. She did so, in a
residential area, at which point appellant got out of the car and ran off.
Fresno
Police Officer Bernard Finley testified to the following: On February 21, at approximately 12:20 a.m.,
in responding to a report of shots fired, he joined other officers in the
pursuit of a white Nissan automobile. At
some point the car stopped, and a male got out of the front passenger seat and
ran off. Finley made contact with
Rebecca Corchado, one of the occupants of the car, who told Finley the
following: Appellant was the man who had
just run from the car. He had “basically
ordered†her to drive and he yelled at her to drive faster. He had a gun and while she was driving “[o]n
the freeway,†he threw it from the car.
Fresno Police Officer Theran
Higginbotham testified to the following:
He participated in the pursuit of the white car and during that pursuit,
while traveling southbound on Highway 41, north of the McKinley Avenue
off-ramp, he saw “something get thrown from the passenger side†of the
vehicle. When the car stopped, appellant
got out on the passenger side and ran off. As he ran, other officers called for him to
stop. Appellant, however, kept running.
Other
police officers testified to the following:
Appellant was arrested later in the early morning of February 21, hiding
in a closet in a house he had entered after running from the white car. In a search of appellant’s person, police
found six .38 caliber bullets in one of appellant’s pants pockets. Thereafter, police transported Macklin to the
location where appellant had been taken into custody. Appellant was “brought out,†and Macklin
initially said appellant was not the person who robbed him at the store. However, Macklin “continued to study†appellant
and after a “couple of minutes,†he told Fresno Police Officer Greg Jouroyan
that appellant was the robber. At trial,
Macklin testified he did not tell Jouroyan that appellant was the person who
robbed him.
California
Highway Patrol Officer Rafael Revera testified to the following: At approximately 9:30 a.m. on February 21, he
received a report that a motorist had seen a gun on Highway 41, and that
shortly thereafter, he found on Highway 41, north of Shields Avenue, a .38
caliber revolver that had been run over. Macklin, upon being shown a photograph of the
gun Revera found, testified it was “similar†to the one used in the robbery.
The parties
stipulated that appellant, in 2010, suffered “an enumerated misdemeanor
conviction within the meaning of … Section 29805[] and … Section 30305,
subdivision (a).â€
title="">[2]
DISCUSSION
As indicated above, appellant has
filed a document in which he lists what he asserts are “PREJUDICIAL TRIAL ERROR[S].†He makes these claims in a conclusory
fashion, with virtually no explanation and without citation to the record. It appears that these assertions amount, for
the most part, to a claim that the evidence was insufficient to support his
convictions and/or the true findings on the enhancement allegations. Such a claim is without merit. Based on our independent review of the
record, we have concluded all convictions and enhancements are supported by
substantial evidence. (
1053 [“In addressing a challenge to the sufficiency of the evidence supporting
a conviction, the reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubtâ€].)
Appellant also raises, as best we
can determine, claims of instructional error, juror misconduct, prosecutorial
misconduct, and ineffective assistance of counsel. The record, however, contains no support for
any of these claims. Accordingly, we
reject them.
Finally, it appears appellant
asserts the court erred in failing to stay imposition of sentence on the
firearm use enhancement found true in connection with the count 4 assault
conviction. In fact, as indicated above,
the court did stay the 10-year term on this enhancement pursuant to section
654.
We have further concluded,
following our independent review of the record, that no reasonably arguable
legal or factual issues exist.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Levy, Acting P.J., Kane, J., and Franson, J.
name="_ftn2" title="">[1] All statutory references are to the Penal Code.
