P. v. Nava

Filed 5/10/07 P. v. Nava CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE COURT:

It is ordered that the opinion filed herein on April 17, 2007 be modified as follows:

1. On page 7, at the end of the paragraph describing appellant Romulo Nava, Jr.s contentions, add the following new footnote 2, which will require renumbering of all subsequent footnotes:

² In his reply brief Nava also purports to challenge the sufficiency of the evidence supporting the jurys true finding on the gang enhancement by joining the argument made by Martinez in her brief on appeal. Martinez was tried separately from Nava. Whatever legal effect Nava intended by his joinder, his counsels failure to include any citations to the record in his case, other than the jurys verdict form, in direct violation of California Rules of Court, rule 8.204(a)(1)(C) (formerly rule 14(a)(1)), forfeits this argument on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [[E]very [appellate] brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]]; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [it is counsels duty to point out portions of the record that support the position taken on appeal; [t]he appellate court is not required to search the record on its own seeking error]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court of Appeal to search the record on behalf of appellants or to serve as backup appellate counsel].)

2. On page 8, at the end of former footnote 3, add the following language:

Nava apparently does contend he was denied a fair trial in violation of due process because the trial court did not advise Martinez of her Fifth Amendment rights. That argument is frivolous. (See, e.g., People v. Barnum (2003) 29 Cal.4th 1210, 1214 [trial court has no obligation to advise self-represented defendant of the privilege against compelled self-incrimination].)

There is no change in judgment. Appellants petition for rehearing is denied.

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PERLUSS, P. J. JOHNSON, J. WOODS, J.

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