(Super. Ct. No. 09F06018)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Marcus Zapata guilty of three counts of second degree robbery (counts 1-3; Pen. Code,*fn1 § 211), evading a peace officer (count 4; Veh. Code, § 2800.2, subd. (a)), assault with a firearm (count 5; § 245, subd. (a)(2)), attempted second degree robbery (count 6; § 664/211), misdemeanor resisting arrest (count 7; § 148, subd. (a)(1)), and attempted murder (count 9; § 664/187, subd. (a)). The jury also found true allegations defendant personally used a firearm in the commission of counts 1, 2, 3, and 6. (§ 12022.53, subd. (b).)
Sentenced to 23 years and 8 months in state prison,*fn2 defendant appeals, contending (1) his conviction for robbery of Wells Fargo Bank (count 1) must be reversed because robbery of a bank is not a crime; (2) there is insufficient evidence to support his conviction for assault with a firearm (count 5); (3) there is insufficient evidence to support his conviction for attempted murder; and (4) the trial court's failure to stay his sentence for resisting arrest (count 7) violated section 654.
We shall reverse defendant's convictions for robbery of Wells Fargo Bank (count 1) and assault with a firearm (count 5), stay his sentence for resisting arrest (count 7) and otherwise affirm the judgment. The reversals do not affect the length of defendant's sentence since the sentence on count 1 had been stayed and the sentence on count 5 had been made concurrent. In addition the stayed sentence on count 7 had been made concurrent.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:00 p.m. on August 8, 2009, defendant and Jordan Latour entered a Wells Fargo Bank in Rocklin wearing masks and carrying guns. Both men waived their guns and told everyone to get on the floor. Defendant jumped over the teller counter and emptied the money from tellers Iona Crivineau and Anne Beaumont's cash drawers into a bag, while Latour remained in the customer area where he pointed his unloaded gun at bank employee Ali Khosroshahi from about a foot away. Defendant then jumped back over the counter, and he and Latour ran out of the bank and into the parking lot, where getaway driver Loureece Clark was waiting for them in a dark-colored four-door car with paper plates. Defendant and Latour got into the car, and the three men sped off.
Rocklin Police Officer John Constable was dispatched to the bank. As he approached the bank, a citizen directed him to the getaway car, which had just left the parking lot. Constable caught up to the car and activated his overhead lights. The car pulled out from stopped traffic and drove onto the freeway. Constable followed the car westbound on Interstate 80 for several miles. They reached speeds of 115 miles per hour. Believing it was too dangerous to keep pace with the car, Constable eventually slowed down and continued to follow the car at a safe distance and speed. He lost sight of the car near Madison Avenue and concluded the car likely exited the freeway at the Madison Avenue exit. He advised dispatch that he believed the car exited the freeway at Madison Avenue and continued westbound on Interstate 80 for approximately five miles in case he was mistaken. After failing to locate the car, Constable reversed course, intending to exit at Madison Avenue and continue his search for the car.
The car did in fact exit the freeway at Madison Avenue and pulled into the parking lot of a strip mall at Madison Avenue and Hillsdale Boulevard. Defendant and Latour immediately got out and ran behind the building, while Clark drove away in the car. At least one of them was still wearing a face mask. A man sitting in his car in the parking lot observed the men exit the car. Believing the two men were going to commit a robbery, he contacted Sacramento County Sheriff Deputy Duke Lewis, who was sitting in his car in a church parking lot across the street from the mall.
Lewis immediately drove across the street to the strip mall and confronted defendant and Latour behind the building. As Lewis exited his car and began to approach the men, another car entered the parking lot and Lewis diverted his attention from defendant and Latour. When he turned back around, Latour was pointing a revolver at him. Lewis ran, and Latour shot him in the shoulder. Lewis continued running until he reached the church parking lot across the street.
Meanwhile, Rocklin Police Officer Michael Alway, who also had been dispatched to the bank and had been following Constable on the freeway, exited the freeway at Madison Avenue to search for the car while Constable continued westbound on Interstate 80. Alway drove past the strip mall and into a residential area. When he reached the residential area, he made a U-turn and headed back toward the mall. While in route, he saw several people in a church parking lot, including two deputies, attempting ...