IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MATTHEW MORENO, DEFENDANT AND APPELLANT.
(Santa Clara County Super. Ct. Nos. CC805539, CC646684)
The opinion of the court was delivered by: Elia, J.
P. v. Moreno CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Matthew Moreno (defendant) appeals from his conviction of attempted premeditated murder and the sentence imposed following a jury trial. In addition, he appeals from the trial court's finding that he was in violation of probation and from the sentence imposed.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende/Anders was being requested.
On August 20, 2010, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Defendant was charged by criminal information, filed by the Santa Clara County District Attorney's Office, with one count of attempted premeditated murder. (Pen. Code, § 664/187.) The information alleged that defendant had personally used a knife within the meaning of Penal Code section 12022, subdivision (b)(1), had suffered a prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i)/1170.12, and that the prior conviction was a serious felony within the meaning of Penal Code section 667.5, subdivision (a).
Defendant entered a plea of not guilty to the charges on September 29, 2008, denied the allegations and waived his speedy trial rights.
Pretrial, at the request of defense counsel, the court ordered the appointment of a doctor pursuant to Evidence Code section 1017. Discovery disputes arose, but were resolved to the satisfaction of both parties. The court heard a Pitchess motion, conducted an in camera hearing and after inspecting the personnel records of one of the police officers involved in this case, the court declared that it did not find any information that fell within the scope of the defendant's discovery request. Thereafter, defendant's attorney declared a conflict and the court appointed defendant a new attorney.
Following approximately one and a half days of testimony, the jury was instructed on the law, deliberated for less than two hours, found defendant guilty as charged and found true the weapon enhancement. Defendant admitted the prior strike and prior serious felony allegations.
Before sentencing, defendant brought a Romero motion to dismiss his prior strike conviction.*fn1 The court denied the Romero and imposed a state prison term of 14 years to life (Pen. Code, §§ 664, 667, subds. (b)-(i)/1170.12) consecutive to six years -- one year for the weapon enhancement and five years for the prior serious felony enhancement (Pen. Code, §§ 12022, subd. (b)(1), 667, subd. (a).). The court imposed various fines and fees and awarded defendant 767 days of custody credits.
At the same time, having heard the evidence in the attempted murder case, the court found that defendant had violated his probation in case No. CC646684, and sentenced defendant on that case. The court imposed a state prison term of 16 years as follows: three years for the underlying crime (robbery Pen. Code, § 211), three years for a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)), and 10 years for a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)). The court awarded defendant 281 days of custody credits; various fines and fees imposed at the time defendant was admitted to probation were ordered to remain.
Evidence Adduced at Trial
The testimony at trial included that of the victim Robert Curiel, San Jose Police Sergeant Cusseaux, who actually witnessed the crime, various other officers who assisted with the investigation and provided evidence of chain of custody of the knife used by defendant, forensic evidence, and the doctor who treated Curiel in the emergency room.
Curiel testified that he was walking home from his job as a retail store loss prevention officer on the afternoon of May 15, 2008, when he was stabbed by defendant. All Curiel could remember was a knife coming at him "like an upper cut." At the time of trial, Curiel thought the defendant might have said something to him, but Curiel was not sure what it was. When he was interviewed about an hour and a half after the event, however, Curiel told San Jose Police Sergeant Cusimano that the defendant said words to the effect of "Hey punk, remember me?"*fn2 Curiel did not know defendant and had never seen him before. Curiel assumed that defendant came from a car that he had noticed while he was walking home.
In response to seeing the knife, Curiel said, "Look, whoa, whoa," and put up his hands to defend himself. He tried to push defendant and turn around. Defendant lunged at him and the first upper cut connected; the knife entered Curiel's chest. Within seconds, a police officer told him to get down on the ground. At the hospital, Curiel needed five staples to close the wound.
Sergeant Lamont Cusseaux testified that he was working as an "off-duty security paid job" at an apartment complex on Flanagan at the time of the incident. When he was driving on Flanagan, he saw a tan SUV double parked, facing westbound on the north side of the street. He looked at the north sidewalk and saw one man approach another man. He saw defendant make six upper cut punching motions. The victim, Curiel, turned sideways and backed into the street. Curiel's hands were in a downward position to fend off blows. Sergeant Cusseaux did not hear anything and there were no other people in the vicinity of Curiel and defendant.
Sergeant Cusseaux got out of his car, drew his firearm and ordered both men to the ground. Sergeant Cusseaux saw defendant throw the knife away before he got down. Once on the ground, defendant looked past the sergeant. This seemed strange to Sergeant Cusseaux, and so, fearing for his safety, Sergeant Cusseaux looked over his shoulder and saw the tan SUV drive off in a westbound direction.
San Jose Police Officer Andrew Wong responded to the scene. He recovered a knife in a carport approximately 75 feet from the curb of Flanagan. The overall length of the knife was eight inches, with a four inch blade. Forensic evidence established that the blood on the knife was Curiel's. Although there was more than one source of DNA found on the knife handle, defendant was one of the contributors.
Officer Desiree Thompson testified that she was assigned to transport defendant. As she got defendant from the back of a patrol car she was holding a clear plastic bag with defendant's property inside. Defendant asked her if his cell phone was in the bag. She told him that it was not. Defendant said he might have dropped it on the ground, but the officer could not find it. Defendant then said he "must have left it in my ride."
Dr. Bruce Wilbur, a trauma surgeon at Regional Medical Center treated Curiel. Curiel had a four centimeter laceration across his chest located on the right side of the sternum and partially across the sternum. Dr Wilbur opined that assuming Curiel's heart was under that part of the sternum, the wound was less than an inch from Curiel's heart. However, it would take a tremendous amount of force to penetrate the sternum. Dr. Wilbur could not tell if the knife hit the sternum. He closed the wound with five staples.
While in county jail pending trial, defendant had a phone conversation with another male, which was recorded. A recording of a portion of that call was played for the jury. In the conversation, defendant stated that he tried to run, but a police officer pulled a gun on him. The other party said that he had seen the officer and thought he "was a nigger trying to blast" defendant. Defendant responded, ". . . shit happens."
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The jury's findings were supported by substantial evidence, and were consistent with the court's instructions. We discern no error in the sentencing. The refusal to grant defendant's Romero motion, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by competent counsel.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.