P. v. Nieves

Filed 6/27/06 P. v. Nieves CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed as modified.

John Steinberg, 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, Senior Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

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In this case, appellant does not challenge his convictions for special circumstance murder or attempted murder and related crimes but instead only claims sentencing error. As conceded by the prosecution, two of his claims are valid and we thus modify the attempted murder sentence and strike the parole revocation fine. But based on the recent California Supreme Court decision in People v. Shabazz[1] we affirm the 25-year firearm enhancement to the LWOP sentence and conclude any Blakely error would be harmless even if the U.S. Supreme Court were to find the California sentencing scheme unconstitutional.

FACTS AND PROCEEDINGS BELOW

In a crime reminiscent of many a movie script, two gang members pulled off an armored car robbery, managing to murder one guard and shoot at the other. Because this appeal only involves alleged sentencing error we find it unnecessary to detail the evidence the jury found convincing at the trial and only sketch the outlines of what that evidence revealed.

In mid-morning June 25, 2002, an armored car parked at Jetro Cash and Carry, where appellant, Daniel Nieves, had worked for a couple of months a year earlier. Waiting nearby in a red Chevrolet Blazer were appellant and his confederate, Jose Silva. One of the armored car guards, Victor Hurtado, went inside the store, picked up some $120,000 in cash and $63,000 in checks and returned to the armored car. When the driver, Javier Saucedo, opened the door of the armored car so Hurtado could throw the cash bag inside, appellant ran up behind Hurtado and shot him in the head. While rolling over Hurtado's body to retrieve the money bag, appellant fired three shots at Saucedo but missed. He then fled with the bag to the Chevy Blazer which raced out of the parking lot.

A couple of blocks away, the two robbers stopped and set fire to the red Blazer then switched to a tan Mercury Villager. Later they dropped off most of the money and succeeded in escaping to Mexico – evidently to celebrate.

This nearly perfect if violent criminal plan quickly unraveled. Eyewitnesses identified both Nieves and Silva and their respective roles in the robbery. Another eyewitness saw the exchange of vehicles and copied down the license plate of the second getaway car, the Mercury Villager. As it turned out the first getaway car was registered to appellant's mother and the second to Silva's girl friend. So when the two robbers tried to return to the U.S. after a day in Mexico, they were taken into custody by customs officials. Searches found appellant's fingerprints in the Mercury Villager and bundles of cash wrapped in â€