(Super. Ct. No. CRF10-2734)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On December 19, 2008, Kathy Groth and Priscilla Dixon were working at a JoAnne's store in Woodland when a man walked in and asked directions on how to get on the freeway. The man later returned to the store, picked up a roll of wrapping paper, and told Groth he wanted to buy it.
Dixon waited on the man at her cash register. After she rang up the purchase, the man said, "this is a robbery." Dixon told the man he must be kidding; he told her that he was not, pulled a gun out of his left coat pocket, and showed it to her. After Dixon complied with defendant's demand, defendant ran out of the store. About $150 was taken that night.
Numerous latent fingerprints were found on the wrapping paper roll. Ten of the prints belonged to defendant Anthony Urbano.
Dixon identified defendant as the perpetrator at a photographic lineup but Groth was not able to identify a perpetrator in the lineup. At trial, both Groth and Dixon identified defendant as the robber.
Defendant had a player's card at Cache Creek Casino which recorded his financial transactions and playing times there. On December 19, 2008, defendant used the card from 5:06 p.m. to 5:34 p.m., and had $.03 at the end of the session. His card was used again between 9:34 p.m. and 10:36 p.m., and he had $100 on the card at the start of the session.
Defendant was charged with second degree robbery (Pen. Code, §§ 211/212.5)*fn1 with an enhancement for personal use of a firearm (§ 12022.53, subd. (b)). Defendant's first jury trial ended in a hung jury. Defendant discharged counsel and represented himself at the second trial. Following the second jury trial, defendant was convicted of second degree robbery and the personal use of a firearm enhancement. The trial court denied defendant's motion for a new trial and sentenced defendant to a 13-year prison term, imposed various fines and fees, and awarded 461 days of presentence credit, consisting of 401 days' custody and 60 days' conduct credit.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief requesting we conduct an independent review of the case as well as raising several issues of his own.
Defendant contends double jeopardy barred retrial on the gun enhancement after the first trial. He argues that since there is no evidence in the record that the jury was unable to reach a verdict on the enhancement in his first trial, the jury must not have made any finding on the enhancement, which ...