P. v. Mageo

Filed 8/9/06 P. v. Mageo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. W. Charles Morgan and Dennis A. McConaghy, Judges. Affirmed as modified.

Alisa A. Shorago 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kathryn F. Gayle, Deputy Attorney General, for Plaintiff and Respondent.

Over about five weeks ‑‑ from September 5 through October 12, 2002 ‑‑ defendant held up 13 different fast-food restaurants and gas stations. This crime spree came to a halt only because he was apprehended. When the police interviewed him, he admitted being the person who had carried out the holdups. Many of them had been recorded by surveillance video cameras.

Defendant was charged with 18 counts of robbery (several robberies involved multiple victims) (Pen. Code, § 211), four counts of assault with a firearm (Pen. Code, § 245, subd. (a)(1)), and one count of making a criminal threat (Pen. Code, § 422). Numerous personal firearm use enhancements were also alleged. (Pen. Code, § 12022.53, subds. (b) & (c); former Pen. Code, § 12022.5, subd. (a)(1), Stats. 1999, ch. 129, § 5; see now Pen. Code, § 12022.5, subd. (a).)

The jury found defendant guilty on all counts and found all enhancements true. The trial court imposed a total sentence of 86 years 8 months in prison.

Defendant now contends:

1. The trial court erred by failing to conduct a sufficient inquiry in response to defendant's two Marsden motions.^[1]

2. There was insufficient evidence to support one of the robbery convictions (count 10).

3. The sentence constitutes cruel and unusual punishment.

We agree that the conviction on count 10 is not supported by substantial evidence. We will modify the judgment accordingly. Otherwise, we find no reversible error.

I

MARSDEN

Defendant contends the trial court erred by denying his two Marsden motions without adequately inquiring into their grounds.

A. General Legal Principles.

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