P. v. Nunez
Filed 6/7/06 P. v. Nunez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL NUNEZ, Defendant and Appellant. | G034585 (Super. Ct. No. 02CF3410) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Anthony J. Dain, 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, Lynne G. McGinnis and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Emmanuel Nunez appeals from the judgment sending him to prison for 22 years[1] following a jury's verdict that he robbed Manuel Ariza at gunpoint, assaulted him with that gun, possessed that gun when it was loaded and personally used and discharged the gun during the robbery. (See §§ 211, 245, subd. (b), 12031, subd. (a)(1), 12022.53, subds. (a)-(c).)[2] He contends on appeal the evidence is insufficient to sustain the finding of the personal discharge of the firearm, and that the trial court failed to adequately respond to a jury question. Finally, relying on People v. Dillon (1983) 34 Cal.3d 441, he characterizes the 20-year term for the enhancement as unconstitutionally cruel and unusual as applied to him because he was only 15 at the time of the crime. We affirm.
FACTS
A few days before Christmas 2002, Ariza was heading home on his bicycle around 9:00 p.m. Suddenly, a van came to a stop in front of him and two men alighted. They approached and surrounded him. Both men held guns in their hands, and one of them demanded Ariza's money. He responded that he didn't have any, so one of the men tried to take Ariza's wallet out of his pocket, an act inhibited by Ariza's sitting on it. The man standing behind Ariza then struck him in the head with a gun, sending Ariza to the ground, at which point the two men kicked him, grabbed his wallet and walked away.
Another motorist spotted Ariza and offered to help him. Hearing what had happened, the â€
