P. v. Valenzuela

Filed 4/25/06 P. v. Valenzuela 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Frank

F. Fasel, Judge. Affirmed as modified.

Nancy L. Tetreault, 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, Pamela A. Ratner Sobeck and Ivy B. Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.

Julio Valenzuela was convicted of robbery, assault with a firearm and shooting at an occupied vehicle. The jury also found he used and was armed with a firearm, but it rejected the allegation he personally discharged one. Valenzuela contends the court erred by failing to instruct on lesser included offenses and failing to strike the gun use enhancement. His second point is undisputed and well taken. However, other than correcting this minor sentencing error, we affirm the judgment in its entirety.^[1]

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One night after playing music at an Anaheim restaurant, Miguel Ramirez walked to his car in the parking lot. As he entered the vehicle and started it up, a van pulled up from behind, preventing his departure. Accounts differ as to what happened after that. Ramirez testified two men exited the van and approached his car, one on each side. Both of the men had guns and aimed them at him. The man on his side demanded his wallet, but thinking the guns weren't real, Ramirez told him he didn't have any money. However, after the other man yelled â€