P. v. Rubio

Filed 2/7/07  P. v. Rubio CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from a judgment of the Superior Court of Los Angeles County.  John T. Doyle, Judge.  Affirmed as modified.

            Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

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            Raul Rubio, Jr., also known as Mikey Quintero, was convicted of two counts of second degree robbery, three counts of attempted second degree robbery, two counts of assault with a firearm, one count of discharging a firearm at an occupied motor vehicle, and numerous enhancements for firearms use and infliction of great bodily injury.  He was sentenced to 69 years to life in state prison.

            Appellant and respondent agree that, on the count of shooting at an occupied motor vehicle, the trial court should have imposed one rather than two firearms discharge enhancements, pursuant to Penal Code section 12022.53, subdivision (d) (§  12022.53(d).)[1]  We reject appellant's other contention, which is that there was insufficient evidence on two of the attempted robbery counts.  We therefore strike one of the section 12022.53(d) enhancements, and otherwise affirm.

FACTS

1.  Prosecution Evidence

            During a short time period, on the evening of December 20, 2004, appellant and Gavino David Alvarez committed crimes against three sets of victims, as they drove around Compton in a gray and maroon van.  Appellant was the driver.  Alvarez was in the passenger seat.  Alvarez was the codefendant below, but is not involved in this appeal.

            During the first incident, appellant stopped the van, jumped out of it, and approached Steven P., who was walking along the street with two other young men.  Alvarez remained in the van.  Appellant and Alvarez asked Steven P. and his friends where they were from, and/or if they were from a â€