P. v. Beltran

Filed 2/20/07  P. v. Beltran CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

          APPEALS from judgments of the Superior Court of Los Angeles County, Michael K. Kellogg, Judge.  Affirmed.

          Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Carlos Beltran.

          Anthony Boskovich, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Martinez. 

          Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

          Appellants Fernando Carlos Beltran and Jonathan Martinez were convicted of the second degree robbery of Edwin Martinez.  The jury found gun use allegations not true, and Martinez was acquitted of assault with a firearm.[1]  Martinez contends that because the jury rejected gun use allegations, the evidence that he had been armed cannot be considered in a substantial-evidence review.  He also contends that evidence of appellants' gang membership should have been excluded.  We reject both contentions and affirm the judgment as to Martinez. 

          Counsel for Beltran joined in any of Martinez's arguments that might benefit him, but found no arguable issues, and has requested an independent review of the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and Smith v. Robbins (2000) 528 U.S. 259.[2]  After thoroughly reviewing the record, we have identified no arguable issues for appellate review, and therefore affirm the judgment as to Beltran as well.

PROCEDURAL BACKGROUND

          In addition to convicting both appellants Beltran and Martinez of second degree robbery in violation of Penal Code section 211,[3] the jury convicted Martinez of carrying a loaded unregistered firearm, in violation of section 12031, subdivision (a)(1), and engaging in unlawful firearm activity after a previous conviction of a firearm offense, in violation of section 12021, subdivision (e).  Beltran was informed of his right to a jury trial as to his prior convictions alleged as a sentence enhancement under section 667.5, subdivision  (b).  He waived this right and admitted that he had suffered two prior convictions, served a prison sentence as to one of them, and committed the current crime within five years of the conclusion of the term.

          Martinez was acquitted of the charge of assault with a firearm in violation of section 245, subdivision (a)(2).  The jury found not true the special allegation, charged against both appellants, that a principal had been armed with a handgun in the commission of the crime, within the meaning of section 12022, subdivision  (a)(1).  The jury also found not true the special allegation, charged against Martinez only, that he had personally used a handgun in the commission of the robbery, within the meaning of section 12022.53, subdivision (b).

          Martinez was sentenced to three years, eight months in prison.  His sentence included the middle term of three years on the robbery conviction and the middle term of eight months on the conviction of carrying an unregistered loaded firearm.  The trial court stayed sentencing on the unlawful firearm activity, pursuant to section 654, subdivision (a).  Beltran was sentenced to four years in prison, which included the three year middle term as to the robbery, with a one year enhancement due to the prior prison term.  Both appellants timely filed their notices of appeal.

402 HEARING

          Before the first witness was called, the court held a hearing pursuant to Evidence Code section 402 to consider Martinez's motion in limine to exclude evidence that Beltran stated his gang name, H.P. Locos, to the victim just before and after robbing him, that Beltran asked the victim whether he belonged to a gang and that Martinez admitted to a detective that he was a member of H.P.  Locos.[4]  The trial court rejected counsel's argument that the evidence was cumulative and unduly prejudicial, and denied the motion.  However, the court limited its use to the issue of identification, explaining that it would be admitted as â€