(Super. Ct. No. 11NCR08658)
The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Antonio Guerrero of conspiracy to commit robbery (Pen. Code, §§ 182, subd. (a)(1), 211, count I; unspecified section references that follow are to the Penal Code), attempted robbery (§§ 664/211, count II), and simple assault (§ 240, count III, lesser). Defendant's motion for acquittal was granted on counts of burglary (§ 459, count VI) and conspiracy to commit burglary (§§ 182, subd. (a), 459, count VII).
Defendant was sentenced to state prison for an aggregate term of five years in state prison: five years on count I, a concurrent term of 18 months on count II, and a concurrent term of six months on count III. Defendant was awarded 273 days' custody credit and 273 days' conduct credit.
Defendant contends there is insufficient evidence to support his conviction on either count I or count II. We disagree. Defendant further contends, and the Attorney General concedes, the sentences on counts II and III must be stayed pursuant to section 654. We will modify the judgment.
On an evening in November 2010, defendant and co-defendant Enrique Madera, who is not a part of this appeal, approached R.H. and his girlfriend outside of their motel room. The duo walked by R.H. without speaking. A few minutes later, defendant reappeared and asked R.H. for the time. R.H. gave defendant the time; defendant thanked R.H. and left. After a few more minutes, Madera repeated what defendant had done: he approached R.H. and asked for the time. R.H. gave Madera the time.
Instead of walking away as defendant had done, Madera just stood there looking at R.H. and his girlfriend. Madera ignored R.H.'s request to move away from what was intended to be a private conversation. Instead, Madera moved closer to R.H. and said, "Where's my ten" or "Give me my ten." R.H. told Madera that he did not know him, did not owe him $10, and did not know what he was talking about. Madera persisted and became more aggressive. Defendant punched R.H.; R.H. grabbed defendant and started hitting him.
As R.H. defended himself against defendant, Madera started hitting R.H. as well, striking him eight or nine times. R.H.'s friends, D.B. and A.G., emerged from the motel and tried to push Madera away from R.H. Madera chased R.H., D.B. and A.G. with a knife. R.H.'s girlfriend observed blood on R.H. He soon realized that Madera had cut him on the head. Madera and defendant fled.