P. v. Salinas

Filed 1/18/07  P. v. Salinas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Singer, Judge.  Affirmed.

                        Martha L. McGill, 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, Peter Quon, Jr., and Pat Zaharopoulos, Deputy Attorneys General, for Plaintiff and Respondent.

*                      *                      *

                        Defendant Daniel Boy Salinas III was convicted of five counts of second-degree robbery; the jury also found true he personally used a knife as to one count and personally used a firearm as to four counts.  He appeals, claiming the court improperly usurped the jury's function when it incorrectly told the jury that two witnesses had identified him as the robber.  We disagree and affirm.

FACTS

                        During a six-week period two gas stations and one doughnut shop in La Habra were robbed for a total of five times.  There were five different victims; the two whose identification testimony is at issue are Maria Sanchez and Cecilio Lopez.

                        The modus operandi of the robber was the same or very similar in each robbery.  In four he used a gun; three times he pulled up his shirt to show it to the victims and one time he pointed it.  Two of the victims testified that the gun police found wrapped in a bandanna in defendant's closet looked like the one used in the robbery.  In one instance a knife was used.  The victim in that crime testified that the knife police found on top of defendant's bed looked like the one used.

                        In the four gas station robberies, defendant entered the store and asked for Kool cigarettes.  After the victims reached for the cigarettes, defendant showed the gun.  Defendant smokes Kools and they were found in his bedroom by police. 

                        Four of the five victims testified the robber wore a blue baseball cap; three stated it had an â€