(Super. Ct. No. CM033711)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Timothy Myles Nunez pled guilty to being an accessory after the fact to murder. (Pen. Code, § 32.)*fn1 On appeal, he contends the trial court abused its discretion by imposing the upper-term sentence of three years in state prison.*fn2 Finding no abuse of discretion, we affirm.
On January 27, 2011, defendant, who was 18 years old at the time, was home with his friends, Antonio Linares and Jose Sanchez, drinking alcohol and smoking marijuana. Defendant stated he "had a gun and so did" Linares. Defendant and Linares "were messing around and trying to 'spin the gun on their fingers.'" Defendant stated he "put [his gun] away" about "10 to 15 minutes" before Linares's gun "just 'went off.'" The bullet struck Sanchez in the side of the head as he sat at the kitchen table.
Sanchez tried to hide behind defendant but defendant fled to the bedroom. Linares shot Sanchez several more times in the head, arm, hand, and torso. Defendant emerged from the bedroom to find Sanchez slouched in a chair. Sanchez then fell to the floor. Defendant went to lock the door and close the blinds, realizing that his nine-year-old sister and a neighbor had witnessed the shooting through the window.
Linares dragged the victim by his shirt to the front entryway. Linares removed his bloody clothes and burned them, along with the victim's wallet, in the fireplace. There was blood throughout the kitchen and living room areas from Sanchez's moving around while being shot. Defendant began collecting cleaning supplies to clean up the blood. Defendant also called Hector, Linares's stepbrother, and asked him to come over and pick up Linares.
Defendant and Linares took two shower curtains from the bathrooms and wrapped Sanchez's body in them. Hector came to pick up Linares and they left for about 30 minutes. During that time, defendant cleaned the apartment with bleach and towels. When Linares returned with his pickup truck, defendant helped Linares load Sanchez's body into the truck. They also burned additional items of their clothing and some towels in the fireplace to cover up any evidence.
Defendant's mother came home and defendant made up a story about a friend being shot and taken to the hospital. Defendant did not think his mother believed the story because she had already talked to his sister. Linares left, after which he dumped Sanchez's body under a bridge and attempted to burn it beyond recognition.*fn3 When Linares returned, he and defendant went to Linares's house, where they burned their shoes and the rest of their clothing. Defendant threw Sanchez's keys into a creek to "get rid of them." With regard to the guns, defendant stated that he "broke his up and threw it in places all over town" and that Linares "had broken his gun up and thrown it into the river and buried it in an orchard." Defendant and Linares then showered, ate, and went to bed. The next morning, defendant and Linares went to Hector's house, where they ate breakfast and "hung out and smoked marijuana."
Two days after the shooting, an informant contacted police to report that one of defendant's neighbors had witnessed the shooting. On February 2, 2011, after several days of investigation, police contacted Sanchez's family, who reported that they had not seen or heard from Sanchez for a week. It was unusual for Sanchez to be out of contact for so long and they believed his phone had been shut off or had a dead battery. Later that same day, police executed a warrant to search defendant's apartment.
When defendant found out his apartment had been "raided," he called Linares. At this point, they knew they needed to leave town so they asked Hector for a ride to Gilroy. During the drive, defendant and Linares remarked that they had left too much evidence behind and they would not get away with the crime. ...