P. v. Romero

Filed 4/28/06 P. v. Romero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed.

Terrence V. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Daniel Rogers, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted Gonzalo Romero of second degree robbery (Pen. Code, § 211; all statutory references are to this code), possession of a firearm by a felon (§ 12021), assault with a semiautomatic firearm (§ 245, subd. (b)), and found the allegation he personally used a firearm to be true (§ 12022.53, subd. (b)). The court found defendant had suffered two prior strikes under the Three Strikes law, and imposed a 25-year-to-life sentence for the robbery, a consecutive 10-year term for using a firearm, and a consecutive five-year term for a prior serious felony. (§ 667, subd. (a).)

Defendant contends the prosecutor used peremptory challenges to remove prospective jurors based on their race. He also challenges the sufficiency of the evidence to support the conviction for assault with a semiautomatic firearm and alleges the trial court failed to instruct on the definition of a semiautomatic weapon. Defendant also complains the trial court neglected to provide a lesser included offense instruction, and no substantial evidence supported the trial court's finding defendant suffered prior convictions. For the reasons stated below, we affirm the judgment.

I

On the evening of August 3, 2003, defendant, dressed in black and his face covered by a balaclava, stepped in front of a bicycle ridden by Adrian Lopez and threatened him with a screwdriver. Lopez jumped off his bike and ran. Defendant pulled out a gun and pursued his quarry. Lopez ran towards a group of men standing in a residential driveway, explained defendant was trying to rob him, and sought refuge in their garage. Defendant arrived, explained to the men Lopez owed him $20 and asked them to expel Lopez from the garage. He pointed his gun at Lopez's feet. Lopez handed over his wallet, which had no money in it, and defendant departed. He returned five minutes later with the mask pulled up on his head, revealing his face. Defendant threw the wallet at Lopez's feet, and demanded money, but fled the scene when one of the men reported the police had arrived. According to Lopez, at some point during the confrontation, defendant â€