P. v. Olivera

Filed 2/16/07  P. v. Olivera CA2/4

NOTTO BE PUBLISHED IN THE OFFICIAL REPORTS

CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b).  This opinion has not been certified forpublication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEALfrom a judgment of the Superior Court ofLos Angeles County, Barry A. Taylor, Judge.  Affirmed as Modified.

          ScottS. Furstman for Defendant and Appellant.

          BillLockyer, Attorney General, Mary JoGraves, Chief Assistant Attorney General, Pamela C. Hamanaka, AssistantAttorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy AttorneysGeneral, for Plaintiff and Respondent.

          A jury convicted defendant Luciano Iglesias Oliveraof two counts of first degree robbery(Pen Code, § 211).[1] In one count, the jury found that defendant personallyused a firearm (§ 12022.53, subd. (b)), and in the other that aprincipal was armed with a firearm (§ 12022, subd. (a)(1)).  Defendant admitteda prior strike conviction (§§ 667, subds. (b) – (i), 1170.12, subds. (a) –(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)).[2]  He also pledguilty to one count of possession of acontrolled substance (Health & Saf. Code, § 11377, subd. (a)).  Thetrial court denied his motionto strike his prior strike conviction, and sentenced him to a total term of27 years in state prison.  Defendant appeals from the judgment, and we affirm.

BACKGROUND

Robbery of Daniel Clark

          Christina Salazar was codefendant Steven Cuda'sgirlfriend.  Called as a prosecution witness at trial, she was then serving athree-year sentence for receiving stolen property.  She testified that on July 30, 2003, she went to the residence of DanielClark with Cuda, defendant, and a third person to purchase drugs.  However, sheprofessed not to remember the events that occurred at Clark's residence, and not to remember what she had earliertold District Attorney Investigator Daniel Riehl.  She admitted that she didnot want to testify against either Cuda or defendant. 

          InvestigatorRiehl was then called to testify concerning his interview of Salazar on December 2, 2004, while she was in custody on herthen-pending case.  According to Riehl, Salazar told him that defendant droveher, Cuda, and defendant's girlfriend Shariin his black Volkswagen Jetta to Clark'shome.  Defendant and Cuda went inside while the women remained in thedriveway.  After a few minutes, Cuda came outside.  Then Clark ran out, his shirt torn, followed by defendant, whohad a gun in his right hand. 

          DanielClark was unavailable as a witness at trial.  Over defense objection, his preliminary hearing testimony was read attrial.  At the preliminary hearing, Clarktestified that he lived in Hollywood, andthat Cuda was helping him do some repairs at his house.  He also had a sexualrelationship with Cuda. 

          OnJuly 30, 2003, Cuda knocked on Clark's door.  Clarklet Cuda in, and they talked.  Clark then hearda noise at the front door.  He got up, and saw defendant inside holding a gun. Defendant pointed the gun at Clark, andordered him to shut up, get on the floor, and not look at him.  Cuda told Clark to do as he was told,  He then produced a roll ofduct tape from his pocket, and began to unroll it.  Clark shouted that he did not want to be taped.  Defendantyelled that he was going to â€