P. v. Nuno
Filed 8/3/06 P. v. Nuno CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. EDUARDO NUNO, Defendant and Appellant. |
F048375
(Super. Ct. No. 04CM4522)
OPINION |
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
After a jury trial, Eduardo Nuno (defendant) and his codefendant Sergio Mercado Broom (Mercado) (collectively, defendants), were found guilty of conspiracy to commit arson (Pen. Code,[1] §§ 182, subd. (a)(1)/451, subd. (b); count 1), attempted arson (§ 455; count 2), and possession of a destructive device (§ 12303.3; count 3). Defendants admitted that the offenses were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)), and the court found that defendant had suffered a prior serious felony conviction under the three strikes law (§§ 1170.12, subs. (a)-(d), 667, subds. (b)-(i)). The court sentenced defendant to a total prison term of 15 years: the mid-term of five years on count 1, doubled as a second strike sentence, plus five years for the gang enhancement, with the remaining terms stayed under section 654.
On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to make proper objections and to request a limiting instruction with respect to gang evidence offered by the prosecution to prove the gang enhancement and to establish motive and intent for the underlying offenses. He also joins the issues raised by Mercado in his separate appeal (F048180) that may accrue to his benefit. Those issues include Mercado's claims challenging the sufficiency of the evidence to support defendants' arson-related convictions and asserting the court erred by failing to instruct the jury with CALJIC No. 2.02. Mercado's challenge to his upper term sentence under Blakely v. Washington (2004) 542 U.S. 296 does not apply to defendant. Finding no reversible error, we affirm the judgment.
FACTS
This case arises out of a series of escalating confrontations which occurred on November 10, 2004, in an area of Hanford commonly referred to as â€
