P. v. Duran
Filed 10/17/07 P. v. Duran CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JOSE CARLOS DURAN, Defendant and Appellant. | E042172 (Super.Ct.No. INF055170) OPINION |
APPEAL from the Superior Court of Riverside County. Lawrence W. Fry, Judge. Affirmed.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Following a jury trial, defendant was found not guilty of robbery (Pen. Code, 211)[1]but guilty of the lesser included offense of attempted robbery ( 664/211). The jury also found true the enhancement allegation that defendant participated as a principal in the commission of the offense knowing that another principal was armed with a firearm ( 12022, subd. (a)(1)). As a result, defendant was sentenced to a total term of two years four months in state prison.
I
FACTUAL BACKGROUND
The victim along with his son and a cousin were waiting for the victims friend in a van on the side of a road when a blue car with four people pulled up alongside. The victim had seen the people before and recognized the driver of the car as Jorge Rodriguez. While defendant and two other men got out of the car and stood near the van, Rodriguez, who was driving the car, demanded money from the victim. The victim responded that they did not have any money. Rodriguez became angry and brandished a weapon, which he retrieved from the floorboard of the car. He pointed the weapon at the victim and again demanded money from the victim. Rodriguez was wearing a bandolier a soldiers belt with small pockets for storing cartridges over his shoulder and across his chest. The victims son became frightened and began crying and shouting, [G]ive him the money. Theyre going to kill you. The victim thereafter proceeded to give money to Rodriguez, and the victims cousin pulled out his money and gave $5 to Rodriguez. Rodriguez demanded more money. After the victim stated he was not going to give Rodriguez any more money, Rodriguez stated, Okay, I dont want anything, but dont tell anybody anything, because I know who you are, I know where you live, and I know your family. Defendant and the other two cohorts got back in the car and left.
The victim went to a nearby store and called the police. While the victim was speaking with Deputy Villegas, the robbers were apprehended. Deputy Villegas took the victim to conduct an infield identification; the victim identified Rodriguez and defendant. The victim also identified defendant in court, after defendant was asked to remove his glasses following an evidentiary hearing.
Following the infield identification, Deputy Villegas went to Rodriguezs home and retrieved a .22 rifle, a shotgun, and bandoliers.
Deputy Villegas testified that on the night of the incident he interviewed the victim, who stated that he was outside his van when he was threatened. The victim also told the deputy that defendant and the two other men surrounded him and all said, You better give us the money or else. The deputy further stated that the victim reported that he gave Rodriguez an initial $5, then another $15, after Rodriguez asked for $20.
The defense moved to dismiss the case under section 1118.1, on the grounds that the victim had not given any money to the robbers, and also asked for an attempted robbery instruction. The court denied the motion and instructed both on robbery and attempted robbery. The jury found defendant guilty of attempted robbery and the firearm enhancement allegation.
II
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [ 87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
KING
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
