The People v. Mills CA2/6

Filed 9/19/13 P. v. Mills CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B243378
(Super. Ct. No. 1331307)
Plaintiff and Respondent, (Santa Barbara County)
v.
JACK MILLS,
Defendant and Appellant.
Jack Mills held a gun to the head of Maria Aguilar and shot Juan Ortiz
Aguilar during a botched home-invasion robbery. A jury found him guilty of the
attempted murder of Juan Ortiz Aguilar (Pen. Code, §§ 187, 664),1 two counts of assault
with a firearm (§ 245, subd. (a)(2)), two counts of attempted second degree robbery
(§§ 211, 664), first degree burglary (§ 459), and possession of a firearm by a felon.
(§ 12021, subd. (a)(1).) The jury also found true numerous sentence enhancement
allegations relating to appellant's use of a firearm and infliction of great bodily injury. As
we will explain in greater detail below, the trial court sentenced appellant, a third-strike
offender, to 59 years to life for the attempted murder, a consecutive term of 35 years to
life for the assault with a firearm on Maria Aguilar, and a consecutive term of 53 years to
life for the attempted robbery of Maria Aguilar. Concurrent terms of 35 years to life and
1
All statutory references are to the Penal Code unless otherwise stated.
1
28 years to life were imposed for the assault with a firearm on, and the attempted robbery
of Juan Aguilar. Terms imposed for the burglary and firearm possession were stayed
pursuant to section 654.
Appellant contends the trial court erred when it imposed consecutive terms
for the assault with a firearm on and attempted robbery of Maria Aguilar, when it failed
to stay pursuant to section 654 the terms imposed for the assault with a firearm on and
attempted robbery of Juan Aguilar, and when it calculated the sentence for the attempted
murder of Juan Aguilar. He further contends the prosecutor committed misconduct in his
closing argument at trial because he impugned the character of appellant's trial counsel.
Finally, appellant contends there is no substantial evidence that he acted with the specific
intent to rob either victim. We stay the terms imposed for the assault with a firearm on
Maria Aguilar and those imposed for the assault with a firearm on and attempted robbery
of Juan Aguilar pursuant to section 654 and re-calculate the term imposed for the
attempted murder. In all other respects, the judgment is affirmed.
Facts
Maria Ramirez Aguilar lived in a Santa Barbara house with her adult
children, Herson and Joanna, her nephew, Juan Ortiz Aguilar, and other relatives. One
Saturday, appellant and a woman came to the house and asked Maria whether she had a
room for rent. On Sunday, Maria held a garage sale. That Monday morning, she was in
her kitchen when she noticed appellant and the same woman again standing inside her
house near the front door. Appellant was wearing a blue cap and holding a newspaper.
Gesturing with the newspaper, he again asked Maria about a room for rent. She walked
closer to him, to see what was in the newspaper. A third man, who was Black and
younger than appellant, appeared and stood behind the woman. Appellant grabbed Maria
by the throat and put a gun to her head. As she started to faint, Maria could hear
appellant cursing at her. The sound of a gunshot revived her. Maria was on the floor
with appellant on top of her. When she looked up, she could see her nephew, Juan
Aguilar, lying on the floor nearby in a pool of blood. He had been shot in the forehead.
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The intruders left the house. Maria cradled Juan's head in her lap while her son Herson
called 911.
Juan was in the bathroom when he heard his aunt arguing with someone in
English. He ran out and saw a man with his left forearm around Maria's neck, pointing a
gun at her right temple. Juan jumped toward them, hitting the man in the face with his
left forearm. The man and Maria fell to the floor. As the man struggled to get up, he
pointed the gun at Juan's chest. They struggled over the gun. Juan heard a shot. He felt
something hit his forehead and then drifted in and out of consciousness.
Herson Aguilar heard a commotion in the living room while he was in his
bedroom, folding laundry. When he got there, he saw his mother lying on the floor and
his cousin Juan fighting with appellant. Herson heard the shot and saw Juan fall down,
but he did not see the gun. He believed the shot came from appellant firing at close
range. After Juan fell down, the Black man pointed a gun at Herson. Herson ran back
down the hallway to his bedroom and jumped out his bedroom window. As he ran
around the house, toward the front door, Herson saw appellant, a woman and two Black
men driving away in a black Volvo. He called 911 and gave a description of both the
Volvo and the people inside it.
Earlier that morning, Herson had been outside, working in the front yard.
He noticed appellant and a Black man loitering near his home. Herson recognized
appellant as the man who was fighting with Juan. He also recognized the Black man as
appellant's companion from earlier that morning.
Sajan Chhetri, a neighbor of the Aguilar family, testified that, about four
days before the assault, two men knocked on his door and claimed to be from the gas
company. One of the men was older and white, like appellant; the other was younger and
Black. The men asked to check Chhetri's gas meter. Even though they were not wearing
coveralls and did not have gas company identification, Chhetri showed them where the
meter was located. The men did not look at it. Instead, they took the opportunity to look
over the fence toward Maria Aguilar's house and back yard.
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Eduardo Trujillo, who lived near the Aguilars on Arrellaga Street, told
police that, on the morning of the attack, he noticed a black, four-door Volvo parked on
the street in front of his next-door neighbor's house. A White woman was sitting in the
driver's seat and an older White man was sitting in the front passenger seat. Two
younger, dark-skinned men were sitting in the back. They asked Trujillo directions to the
700 block of Arrellaga Street. He told him they had already passed the 700 block. The
Volvo drove toward that intersection and then turned on Gillespie Street, where the
Aguilars' house is located. Because Trujillo was suspicious, he wrote down the first two
symbols from the Volvo's license plate: 3F.
Following up on a tip from a citizen informant, Santa Barbara police
obtained surveillance video from a Santa Barbara gas station that was taken the day
before the incident. The video shows appellant, a woman and two younger Black men at
the gas station. Appellant was shown wearing a blue cap like the one Maria Aguilar
described him wearing during the incident. A police officer found a similar cap on the
floor in the Aguilars' living room, near the site of the struggle between appellant and
Juan. The cap did not belong to anyone in the Aguilar family. Maria identified appellant
from the video as the man who attacked her. She also identified the woman he was with
and one of the other men as having been in her home when the attack occurred. Herson
identified the car they were using as the black Volvo he had seen speeding away from the
house that morning.
About 10 days after he was shot, Juan identified appellant from a
photographic line up. Herson identified two photographs as possibly being of the
suspect. One of these was a photograph of appellant. Maria was unable to identify
anyone from the still photographs, although she did identify appellant from the
surveillance video.
In response to a request for assistance from the Santa Barbara police
department, an officer in Lompoc watched the surveillance video. That officer identified
appellant and Rebecca Mills because she had known them for several years. Santa
Barbara police officers then used appellant's name to locate him at his residence in
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Nevada. When they arrived at the Nevada address, they found appellant sitting in a black
four-door Volvo with license plate number 3FLB429. The car matched the descriptions
given by Herson and Trujillo. Appellant was the major contributor of DNA found on the
hat left in the Aguilars' living room after the incident.
Verdict and Sentence
The jury found appellant guilty of the following offenses: count 1.
attempted willful, deliberate and premeditated murder of Juan Ortiz Aguilar; count 2.
assault with a firearm on Maria Aguilar; count 3. assault with a firearm on Juan Ortiz
Aguilar; count 4. attempted second degree robbery of Maria Aguilar; count 5. attempted
second degree robbery of Juan Ortiz Aguilar; count 6. possession of a firearm by a person
who has suffered three prior felony convictions; and count 7. first degree burglary. The
jury found that a principal was armed with a firearm in the commission of counts 1, 4, 5
and 7. (§ 12022, subd. (a)(1).) It found that appellant personally used a firearm while
committing counts 1, 2, 3, 4 and 5. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
With respect to counts 1, 4 and 5, the jury found that appellant personally discharged a
firearm causing great bodily injury to Juan Ortiz Aguilar. (§ 12022.53, subd. (d).) With
respect to counts 1, 3, 5 and 7, the jury found that appellant personally inflicted great
bodily injury on Juan Ortiz Aguilar. (§ 12022.7, subd. (c).) Each offense, other than the
firearm possession offense alleged in count 6, was alleged to be a serious and/or violent
felony within the meaning of sections 667.5 and 1192.7. In a bifurcated proceeding, the
trial court further found that appellant had suffered two prior "strike" convictions of
robbery, in 1977 and 1981. The allegation that appellant had served a prior prison term
in connection with a 1990 conviction of receiving stolen property (§ 496), was dismissed.
The trial court imposed the following sentence. On count 1, it imposed a
sentence of 34 years to life for the attempted murder, plus 25 years to life for the section
12022.53, subdivision (d) enhancement (causing great bodily injury by personally
discharging a firearm). On count 2, it imposed a term of 25 years to life plus 10 years for
the section 12022.5, subdivision (a)(1) enhancement (personal use of a firearm). On
count 4, the trial court imposed a term of 28 years to life for the attempted robbery, plus
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25 years to life for the section 12022.53, subdivision (d) enhancement. The sentences
imposed on counts 1, 2 and 4 were ordered to run consecutively. The trial court imposed
concurrent terms of 35 years to life on count 3 and 28 years to life on count 5. It stayed
the terms imposed on counts 6 and 7 pursuant to section 654.
Contentions
Appellant contends his convictions of attempted robbery should be reversed
because there is no substantial evidence he intended to rob Maria and Juan. He contends
the prosecutor committed misconduct in closing arguments because he disparaged the
integrity of appellant's trial counsel. Appellant also challenges the sentence imposed by
the trial court. He contends the trial court erred when it imposed consecutive terms on
counts 2 and 4, the assault with a firearm on, and attempted robbery of Maria Aguilar,
because these offenses were part of an indivisible course of conduct. One of the terms,
he contends, should be stayed pursuant to section 654. Appellant next contends the
concurrent terms imposed on counts 3 and 5 were unauthorized and that both terms
should be stayed pursuant to section 654. His final sentencing claim is that the trial court
erred when it calculated the term imposed on count 1 for attempted murder because it
made dual use of a single enhancement and incorrectly determined the base term for the
offense.
Discussion
Substantial Evidence
Appellant contends there is no substantial evidence that he intended to rob
the victims, so his convictions of attempted robbery (counts 4 and 5) must be reversed.
We are not persuaded.
In evaluating this contention, we apply familiar standards: we ask whether
the record, considered as a whole and in the light most favorable to the judgment,
contains reasonable, credible evidence of solid value upon which a reasonable trier of fact
could rely to find the defendant guilty beyond a reasonable doubt. (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052; People v. Silva (2001) 25 Cal.4th 345, 368.) We presume
in support of the judgment the existence of every fact the jury could reasonably deduce
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from the evidence. We may not re-weigh the evidence or second-guess the jury's
credibility determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In addition,
we accept all logical inferences the jury might have drawn from the circumstantial
evidence and resolve all evidentiary conflicts in favor of the judgment. (People v. Maury
(2003) 30 Cal.4th 342, 396; People v. Poe (1999) 74 Cal.App.4th 826, 830.) "A reversal
for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis
whatever is there sufficient substantial evidence to support" ' the jury's verdict. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
There was substantial evidence from which a reasonable jury could infer
that appellant entered the Aguilar home with the intent to rob its inhabitants. First, there
was evidence that appellant and his accomplices engaged in extensive planning and
surveillance before they invaded the Aguilar house. Four days before the incident,
appellant and an accomplice impersonated gas company employees and convinced a
neighbor they needed to check the gas meter for a leak. Instead, the two men used the
opportunity to look into the Aguilars' back yard. Two days before the incident, appellant
and his wife went to the house under the pretext that they were looking for a room to rent.
On the morning of the attack, another neighbor saw appellant and his accomplices in the
black Volvo, parked on a street near the Aguilar house. That same morning, Herson saw
appellant and one of his accomplices pretend to be drunk as they walked past the house.
When appellant next entered the house, he again used the ruse that he was looking for a
room to rent so he could get close enough to Maria to grab her. A reasonable jury could
infer from this evidence of planning and surveillance that appellant and his accomplices
were "casing" the Aguilar house prior to robbing it.
Second, the circumstances of the home invasion itself support a reasonable
inference that appellant entered the house with the intent to rob its inhabitants. Appellant
was armed and had accomplices with him. There is no evidence that he had a
relationship with any resident of the house and therefore no basis for inferring that he was
there to avenge an insult or exact revenge. As soon as he got Maria within arm's reach,
appellant immediately grabbed her and put his gun to her head. Juan testified that he
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believed appellant was there to rob the house because there was no other reason for him
to be threatening people. The jury could reasonably have drawn the same inference.
Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct during his
rebuttal argument when he suggested that defense counsel was trying the confuse the jury
by overstating the importance of slight contradictions in the witness' statements. The
contention has been forfeited because appellant did not object to any of the prosecutor's
statements in the trial court. (People v. Seaton (2001) 26 Cal.4th 598, 682; People v.
Fierro (1991) 1 Cal.4th 173, 212.)
Had the contention not been forfeited, we would reject it. In his closing
argument, defense counsel encouraged the jury to be skeptical of each eye witness'
identification, arguing none of the witnesses could reliably identify appellant as the
person with the gun. The prosecutor rebutted that argument by contending that defense
counsel was over-stating the importance of small inconsistencies in the witnesses'
testimony. His rebuttal argument did not impugn the integrity of defense counsel or use
"deceptive or reprehensible methods" to persuade the jury. (People v. Berryman (1993) 6
Cal.4th 1048, 1072.) There was no misconduct. For the same reason, defense counsel
was not ineffective for failing to object to the rebuttal argument. (People v. Boyette
(2002) 29 Cal.4th 381, 424; People v. Price (1991) 1 Cal.4th 324, 387.)
Sentencing Issues
Assault With a Firearm on, and Attempted Robbery of Maria Aguilar
Appellant contends the trial court erred in imposing separate consecutive
terms for the assault with a firearm on, and attempted robbery of Maria Aguilar, counts 2
and 4 . Because these offenses were part of an indivisible course of conduct, he
contends, multiple punishment is barred by section 654. We agree.
Section 654 subdivision (a) provides: "An act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision." " The statute precludes multiple
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punishments for a single act or indivisible course of conduct. (People v. Hester (2000)
22 Cal.4th 290, 294.) "It is defendant's intent and objective, not the temporal proximity
of his offenses, which determine whether the transaction is indivisible. [Citations.] We
have traditionally observed that if all of the offenses were merely incidental to, or were
the means of accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once." (People v. Harrison
(1989) 48 Cal.3d 321, 335.) By contrast, where the defendant has more than one criminal
objective and these objectives are not "merely incidental to each other," he may be
separately punished for each statutory violation committed to further each objective. (Id.
at p. 335.)
As a general rule, when an assault is committed to facilitate a robbery,
section 654 prohibits separate punishments for both offenses. (People v. Miller (1977) 18
Cal.3d 873, 886, disapproved on other grounds, People v. Oates (2004) 32 Cal.4th 1048,
1067-1068, fn. 8; People v. Martinez (1985) 171 Cal.App.3d 727, 736.) However, when
the assault is a "gratuitous" act of violence that does not facilitate the robbery, it "has
traditionally been viewed as not 'incidental' to robbery for purposes of Penal Code
section 654[,]" and may be punished separately. (People v. Nguyen (1988) 204
Cal.App.3d 181, 190.)
Respondent contends appellant was properly sentenced separately for the
assault and the attempted robbery because Maria was not resisting and he "gratuitously"
put the gun to her head. We are not convinced. There is no evidence appellant entered
the Aguilar house for the purpose of assaulting Maria or any other resident. To the
contrary, the only reasonable inference to be drawn from the evidence is that appellant
came to the house for the purpose of robbing the occupants. As Maria described the
incident, appellant grabbed her neck and immediately put the gun to her head. The gun
was the "force or fear" through which appellant attempted to take Maria's property.
(§ 211.)
This is not a case where the robber commits an assault only after taking the
victim's property. In those cases, section 654 does not prohibit separate punishments for
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both the assault and the robbery. For example, in People v. Nguyen, supra, one defendant
emptied a convenience store cash register while his accomplice took the store's clerk
"into a back room, relieved him of his valuables, and then forced him to lie on the floor in
an obvious attempt to forestall any resistance. Only after the clerk assumed that position
did [the second robber] shoot him. [¶] This act constituted an example of gratuitous
violence against a helpless and unresisting victim which has traditionally been viewed as
not 'incidental' to robbery for purposes of Penal Code section 654." (People v. Nguyen,
supra, 204 Cal.App.3d at p 190.)
By contrast, in People v. Miller, supra, Miller and an accomplice entered a
jewelry store to rob it. Miller shot the security guard, while the accomplice told the
salesperson to lie down on the floor and then took jewelry from the display cases. Our
Supreme Court held section 654 did not preclude the imposition of separate punishments
for the burglary and robbery, because the burglary was a crime of violence against the
security guard and the robbery was committed against the salesperson. "Section 654
does, however, preclude the imposition of sentence as to the assault conviction. That
crime was committed during the same course of conduct and against the same victim as
in the case of the aggravated burglary conviction and defendant cannot be punished for
both of those convictions." (Id. 18 Cal.3d at p. 886; see also People v. Latimer (1993) 5
Cal.4th 1203, 1216-1217 [section 654 bars separate punishments for kidnapping and rape
where the kidnapping was committed to accomplish the rape]; People v. Flowers (1982)
132 Cal.App.3d 584, 587-588 [section 654 bars separate terms for assault and robbery
where "the assault was to perfect the robbery . . . ."].)
In our view, this case is more like Miller than Nguyen. Appellant's use of
the gun with Maria was not a whim or an afterthought to the attempted robbery; it was
appellant's means of accomplishing the robbery. Because the offenses against Maria
were part of the same course of conduct, section 654 precludes separate punishment for
both offenses.
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Assault With a Firearm on, and Attempted Robbery of Juan Ortiz Aguilar
Appellant contends the trial court erred when it imposed concurrent terms
on counts 3 and 5, for the assault with a firearm on and attempted robbery of Juan Ortiz
Aguilar. Respondent correctly concedes the point. As we noted above, section 654
prohibits "multiple punishments for a single act or indivisible course of conduct." (People
v. Miller, supra, 18 Cal.3d at p. 885.) In addition, where multiple offenses are committed
"incident to one objective, the defendant may be punished for any one of such offenses
but not for more than one." (People v. Latimer, supra, 5 Cal.4th at p. 1208.) Here,
appellant's intent in committing the assault against Juan Aguilar (count 3) appears to have
been the same as his intent in committing the attempted murder (count 1): to facilitate
appellant's attempted robbery of the same victim (count 5). Because these offenses were
part of a single course of conduct and were committed incident to a single objective,
section 654 prohibits separate punishments for the assault with a firearm and attempted
robbery. The sentences on counts 3 and 5 must be stayed. (See, People v. Miller, supra,
18 Cal.3d at p. 886; People v. Ridley (1965) 63 Cal.2d 671,678.)
Sentence for Attempted Murder
Appellant contends the sentence imposed on count 1for attempted murder
was unauthorized because it made dual use of the section 12022.53, subdivision (d)
enhancement and because it incorrectly calculated the minimum parole eligibility date for
attempted premeditated murder. We agree only with the latter contention.
Section 664, subdivision (a) provides: "[I]f the crime attempted is willful,
deliberate, and premeditated murder, as defined in Section 189, the person guilty of that
attempt shall be punished by imprisonment in the state prison for life with the possibility
of parole." Section 3046 provides that seven years is the minimum parole eligibility date
for a person with a life sentence. (§ 3046, subd. (a)(1); People v. Jefferson (1999) 21
Cal.4th 86, 96.) Appellant's sentence for attempted murder, before application of the
Three Strikes law and the applicable enhancements, should have been life, rather than the
nine years to life imposed by the trial court. (People v. Felix (2000) 22 Cal.4th 651, 657.)
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Appellant next contends the trial court also improperly made dual use of the
section 12022.53, subdivision (d) enhancement for personal use of a firearm causing
great bodily injury. We are not persuaded. The trial court correctly included the 25-year
enhancement term mandated by section 12022.53 in calculating the minimum term of
appellant's indeterminate sentence. (People v. Williams (2004) 34 Cal.4th 397, 403;
People v. Acosta (2002) 29 Cal.4th 105, 108.) It also correctly imposed an additional and
consecutive term of 25 years to life for the section 12022.53 enhancement itself. (§ 667,
subd. (e)(2)(B); § 12022.53, subd. (d).)
Appellant is a third strike offender. As a consequence, the trial court was
required to use the Three Strikes Law to calculate his sentence. Subdivision (e) of
section 667 provides that the term for appellant's current attempted murder conviction
"shall be an indeterminate term of life imprisonment," with the "minimum term of the
indeterminate sentence" being the greatest of the three options described in subdivision
(e)(2)(A). (People v. Acosta, supra, 29 Cal.4th at p. 108.) These options are: (i) three
times the term otherwise provided as punishment for attempted murder, not including
enhancements; (ii) 25 years; or (iii) "[t]he term determined by the court pursuant to
Section 1170 for the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046." (People v. Williams, supra, 34 Cal.4th at p. 403;
§ 667, subd. (e)(2)(A). ) The trial court here employed option 3 which, it correctly
concluded, yields the longest sentence.
The minimum term calculated under option 3 includes the term for the
current felony plus "any applicable enhancement that would be used to lengthen the term
the defendant would receive absent the Three Strikes Law." (People v. Acosta, supra, 29
Cal.4th at p. 115.) An enhancement imposed under section 12022.53, subdivision (d)
lengthens the term appellant would receive for attempted murder absent the Three Strikes
Law. Thus, the minimum term of appellant's indeterminate life sentence under option 3
is 32 years, composed of 7 years under section 3046 plus 25 years under section
12022.53, subdivision (d).
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The trial court also properly imposed an additional, consecutive
enhancement term of 25 years under section 12022.53, subdivision (d), for a total
sentence of 57 years to life. (§§ 667, subd. (e)(2)(B); 12022.53, subd. (d); People v.
Williams, supra, 34 Cal.4th at p. 403; People v. Miranda (2011) 192 Cal.App.4th 398,
417.) As the court explained in Williams: "In third strike cases, the Three Strikes Law
uses enhancements in two distinct ways: to calculate the minimum term of the
indeterminate life sentence and to add an additional, determinate term to be served before
the indeterminate life sentence . . . ." (People v. Williams, supra, 34 Cal.4th at p. 403.)
The Three Strikes Law requires that a third-strike defendant's indeterminate life sentence
"shall be served consecutive to any other term of imprisonment for which a consecutive
term may be imposed by law[,]" (§ 667, subd. (e)(2)(B)), and shall be "in addition to any
other enhancement or punishment provisions which may apply[.]" (§ 667, subd. (e).)
These provisions apply "whether or not the minimum term was established under option
three." (People v. Williams, supra, 34 Cal.4th at p. 403.) As a consequence, the
enhancement term is imposed consecutive to the minimum term of the indeterminate life
sentence, even where the minimum term of the life sentence is calculated by adding in the
enhancement term under option three of section 667, subdivision (e)(2)(A). (Id.; see also
People v. Dotson (1997) 16 Cal.4th 547, 553.) There was no improper dual use of the
firearm enhancement.
Disposition
We modify appellant's sentence as follows: As to count 1 (attempted
murder), appellant is sentenced to a term in state prison of 32 years to life (§ 667, subd.
(e)(2)(A)(iii)), plus a consecutive sentence enhancement term of 25 years to life.
(§ 12022.53, subd. (d).) Execution of the sentence imposed on counts 2, 3, 5, 6 and 7
(including any accompanying enhancement terms) is stayed pursuant to section 654. The
stay shall become permanent upon completion of the service of sentence on counts 1
(attempted murder of Juan Ortiz Aguilar) and 4 (attempted second degree robbery of
Maria Aguilar). As so modified, the judgment is affirmed. The trial court is directed to
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prepare an amended abstract of judgment and to transmit a certified copy of it to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Frank Ochoa, Judge
Superior Court County of Santa Barbara
______________________________
Gilbertt W. Lentz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel,
Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
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