(Super. Ct. Nos. NCR78303, NCR76833)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Dylan Franklin Shires was convicted by guilty pleas of second degree murder and battery with serious bodily injury. The trial court sentenced him to 40 years to life plus a consecutive term of nine years.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.
On January 27, 2009, four masked men entered the home of Clarence Puckett and his wife, Paula Puckett. The Pucketts had medical marijuana recommendations. The robbers demanded to know where they kept their marijuana. The robbers took several gallon-sized bags after Paula told them. The robbers then asked for money but Clarence said there was none. A struggle followed, and Clarence was killed by a single gunshot wound to the head.
Defendant was one of the robbers. He was armed with a borrowed shotgun during the robbery. When borrowing the shotgun, defendant said he wanted "to be a gang banger." Defendant associated with members of the "NVL" gang and had two gang-related tattoos.
In case No. NCR76833, defendant pleaded guilty to second degree murder and admitted the special allegations of firearm discharge causing death with gang benefit and status as a minor (16 years old). (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e)(1);*fn1 Welf. & Inst. Code, § 707, subd. (d)(1).)
In late November 2009, while in jail awaiting trial for the robbery-murder charges, defendant quarreled with another inmate, Thomas Martin. Defendant went to Martin's cell the following day to confront him about the quarrel. Defendant provoked Martin to a fight and punched him several times. When Martin fell to the floor, defendant repeatedly stomped on Martin's head. Martin suffered brain damage from defendant's assault.
In case No. NCR78303, defendant pleaded guilty to assault by means likely to produce great bodily injury with a paralysis and/or brain injury enhancement. ...