P. v. Sims

Filed 6/21/06 P. v. Sims CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. Affirmed as modified.

Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.

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In connection with the October 29, 2002 robbery incident at the Liquor Land Deli on Long Beach Boulevard (counts 1 through 3), a jury convicted defendant Jamal Omar Sims of the attempted murder of Samer Askar in violation of Penal Code^[1] sections 664 and 187, subdivision (a), finding that the attempt was willful, deliberate, and premeditated. The jury also found true the firearm allegations under section 12022.53, subdivisions (b) through (d), including that defendant personally and intentionally fired a handgun to cause great bodily injury to Askar.^[2] The jury convicted defendant of the second degree robberies of Askar and Rosendo Moya-Jimenez in violation of section 211 (counts 2 and 3), finding the same firearm allegations true as to Askar; however, as to Moya-Jimenez, the jury found the personal use and intentional discharge allegations true, but the great bodily injury allegation not true. In connection with a separate incident committed on the same day, defendant was convicted on count 4 of the attempted second degree robbery (§§ 664, 211) of Tanweer Ahmed, with findings that he personally used a handgun in committing the offense (count 4).^[3]

Defendant was sentenced to a prison term of life with the possibility of parole for the attempted murder conviction, plus a consecutive term of 25 years to life for the personal handgun use with great bodily injury enhancement. In addition, defendant received a five-year upper term sentence for the Moya-Jimenez robbery (count 3), enhanced with a consecutive 20-year term for the firearm enhancement under section 12022.53, subdivision (c).^[4] A consecutive eight-month sentence (one third of the midterm) was imposed for the Ahmed attempted robbery, enhanced with a three-year four-month term for the firearm enhancement. A one-year midterm sentence was imposed for the Askar robberty (count 2). Defendant's total sentence was life plus 55 years.

On appeal, defendant advances eight contentions: (1) the admission of Johnson's post-arrest statement violated defendant's Sixth Amendment right to confront witnesses under the Aranda/Bruton rule;^[5] (2) the trial court abused its discretion in consolidating the counts arising out of two separate robbery incidents; (3) the trial court erred in denying defendant's motion for a mistrial; (4) there was constitutionally insufficient evidence of premeditation and deliberation to support defendant's attempted first degree murder conviction; (5) the cumulative effect of the above errors rendered defendant's trial fundamentally unfair; (6) imposition of upper term and consecutive sentences violated defendant's Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely); (7) the trial court erroneously stayed imposition of the lesser firearm enhancements; and (8) the firearm enhancement provisions of section 12022.53 violate the equal protection and due process provisions of the state and federal Constitutions. We reject all of these contentions and affirm.

STATEMENT OF THE FACTS

The Milk Parlor Robberies

Defendant was not charged in connection with this incident; however, we recount the facts because they bear on the consolidation issue and provide background for the subsequent robberies involving defendant. On the evening of August 19, 2002, Alberto Terrazas went to the Milk Parlor convenience store in Long Beach to buy some beer. He parked in the back near a gold Mustang. Wonja Eun was working behind the cash register. Two African-American males had already entered the store, posing as customers. One wore a hooded yellow jacket and stood by the entrance as a lookout. Based on the evidence presented at trial as to both incidents, in keeping with standard appellate practice (see People v. Maury (2003) 30 Cal.4th 342, 396), we draw the logical inference that Johnson was the yellow-jacketed robber. The other robber pointed a gun at Eun and demanded money. Out of fear, she emptied the register into a bag and gave the money to him.

When Terrazas entered the store, Johnson put a gun to his head and told him to get down on the floor. Out of fear, Terrazas complied. Johnson took the $20 bill Terrazas had in his hand. After the robbers fled, Eun called 911 and reported the armed robbery.

Nicole Dudley was driving to the Milk Parlor. She stopped at a traffic light across from the store and saw Johnson in the driver's seat of a gold Mustang that was stopped at the same light. He wore a bright yellow or gold hooded sweatshirt. A passenger was seated across from him. When the light changed, Dudley made a U-turn, pulled into the driveway, and parked in front of the store. Once inside, Terrazas told her, â€