(Super. Ct. No. 06F04750)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
As a result of defendant Mitchell Isiah Gallien's participation in a home invasion robbery, a jury found him guilty of burglary, three counts of robbery, assault with a deadly weapon, and assault with a firearm. The jury also found defendant personally had used and discharged the firearm, and had acted in concert in the home invasion. The trial court found defendant had a prior strike conviction for robbery and sentenced him to an aggregate term of 53 years four months in prison.
On appeal, defendant contends: (1) there was insufficient evidence to prove he discharged the firearm in connection with the robbery of two of the victims; (2) the jury was improperly instructed with CALCRIM No. 3261 on the "escape rule"; and (3) the disparity between his sentence and the sentences imposed upon his cohorts violates his state and federal due process and jury trial rights. We order a correction to the abstract of judgment, but otherwise affirm the judgment.
Around 11:30 a.m. on May 5, 2006, Adolfo Harnandis was with a friend at a fast food restaurant. While there, he approached Erica Casey and Stormi Bradford and invited them to a Cinco de Mayo party that night. They exchanged phone numbers and Harnandis gave them the address of the party.
After Harnandis left, Bradford told Casey that Harnandis would be an easy target for a robbery. Casey called her sister, defendant, and Deandre McLish, and the five of them spent the day together. Harnandis called Casey several times to confirm their presence at the party. Twenty minutes before leaving for the party, Casey questioned Harnandis and learned there were four people at the party at that time.
Casey's sister drove the others to the party, dropping defendant and McLish off around the corner. When the women arrived, there were four young men in the living room: Harnandis, Francisco Martinez, Macario Perea, and Eugenio Del Angel. After introductions, Casey's sister called defendant. Two minutes later, defendant and McLish came in through the front door and the three women left and got into the car that was parked outside.
Defendant was holding a gun and McLish had brass knuckles. Defendant pointed the gun at the young men and yelled at them to lie down and take everything out of their pockets. When Harnandis resisted, McLish hit him in the face and took his wallet and $60. McLish then hit Martinez twice in the face with the brass knuckles and took his wallet, along with $250 to $300. After also being hit in the face, Perea handed over approximately $1,000. Del Angel gave the robbers over $100 to $200.
When defendant and McLish left the house, Harnandis followed them outside and saw them get into a car. Harnandis got into his truck and followed the car, jotting down the license plate number. Casey's sister was driving fast and Harnandis followed close behind. As they drove through the neighborhood, defendant leaned out the front passenger window and fired two shots at Harnandis. Harnandis decided not to follow the car any longer and went back to the house to check on his friends.
The jury found defendant guilty of residential burglary, robbery of Harnandis, robbery of Martinez, robbery of Perea, assault with a deadly weapon, and assault with a firearm. The jury also found defendant had acted in concert in a home invasion (Pen. Code, § 213, subd. (a)(1)(A); undesignated statutory references that follow are to the Penal Code) in connection with all three robberies, that he personally used (§ 12022.53, subd. (b)) and discharged (§ 12022.53, subd. (c)) a firearm in connection with ...