P. v. Medina

Filed 2/15/07  P. v. Medina CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County,

George Gonzalez Lomeli, Judge.  Reversed in part and remanded for further proceedings.

            Law Offices of Simmons & Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

            Raymond Anthony Medina appeals the judgment entered following his conviction by jury of robbery, driving a vehicle without the owner's consent and attempting to evade a peace officer with willful disregard for the safety of persons and property.  (Pen. Code, § 211; Veh. Code, §§ 10851, 2800.2, subd. (a).)  The trial court found Medina had two prior convictions within the meaning of the Three Strikes law and Penal Code section 667, subdivision (a)(1), but struck one of the convictions within the meaning of the Three Strikes law and imposed an aggregate prison term of 22 years and 8 months.

            We reverse Medina's conviction of attempting to evade a peace officer but otherwise affirm the judgment and remand for resentencing. 

FACTUAL BACKGROUND

            1.  Theft of the van. 

            On January 9, 2005, Kwesi Porter stopped at a burrito truck in East Los Angeles and left the engine of his mother's silver van running.  Porter saw a male Hispanic with a long ponytail jump into the van and drive away.  Porter identified Medina at the preliminary hearing based on his long ponytail but admitted at trial he did not see the face of the male who took the van.  Porter testified he is openly gay and was wearing women's clothing on the night in question but denied he has ever used the name Quantril.

            2.  Robbery of Aguirre.

            On January 15, 2005, at approximately 4:30 a.m. Julian Aguirre was walking home from the hospital.  At the intersection of Cesar Chavez Boulevard and Gage Avenue, a silver van blocked his path.  The driver, Medina, got out of the van with his right hand behind his back and asked if Aguirre had any money.  Aguirre said he did not but Medina â€