Opinion
C081131
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN XIONG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F02578)
Appointed counsel for defendant John Xiong asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
I. BACKGROUND
We provide the following brief description of the facts and procedural history. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On April 5, 2012, at approximately 12:25 a.m., Qaisara Malik was working at B and W Liquor, a liquor store in Sacramento, when a man with a bandana covering his face came into the store, pointed a gun at her, and demanded she give him all the money. While Malik put money on the counter, the man demanded more money and repeatedly threatened to shoot her. She tried to give him cigarettes and liquor. As she bent down to get the cigarettes, she heard a gunshot and the man ran out of the store.
Malik called 911. She described the robber as Asian, medium build, between 5'8" and 5'10" tall, wearing a hat and a blue bandana. She also informed law enforcement the money he had taken had a tracking device.
Within a few minutes, law enforcement picked up the tracking signal in the money. About 10 minutes after the robbery of the liquor store, the tracking signal was detected about a mile away from the liquor store, emanating from a Subaru Forester parked in a 7-Eleven parking lot. Codefendant Harpreet Arman was in the driver's seat and defendant was in the front passenger seat. As he pulled up behind the car, Officer Eagleton of the Sacramento Police Department saw defendant reach toward the center of the car.
Officer Eagleton ordered the men to exit the vehicle with their hands up, and get on the ground. Arman complied, but defendant did not. Defendant got out of the car, walked towards the back of the car, and began to take off his jacket. Officer Eagleton took defendant to the ground. Defendant appeared intoxicated, his eyes were red and he smelled of alcohol. Officer Eagleton searched the car and found a blue bandana on the front passenger seat, and cash stuffed between the front passenger seat and the center console. The tracking device and more cash were on the floor of the car near the passenger seat. The total amount of cash found in the car was $423. A blue hat and a loaded .32-caliber semiautomatic pistol were in the backseat.
Law enforcement brought Malik to the parking lot for an infield show-up identification. She was not certain if defendant was the robber, but was certain Arman was not. The blue bandana and gun were similar to those used by the robber.
Officers found an expended shell casing at the liquor store. A criminalist compared it with rounds fired from the gun recovered from Arman's car, and concluded the shell casing found at the scene was fired from the same gun. Defendant's hands tested positive for gunshot residue. A criminalist specializing in DNA analysis tested the bandana for DNA and generated a partial profile consistent with defendant.
At trial Malik described the robber as an Asian male, approximately 5'8" inches tall, wearing a blue baseball cap, a blue bandana over his face, and a black jacket. His eyes were red and "glossed over" and she thought he was high or drunk. She estimated the robber had taken between $500 and $1,000.
As evidence of identity, the prosecution put on evidence of another robbery committed approximately two hours before the B and W Liquor store robbery at a mini mart approximately 40 miles north of Sacramento. The store clerk from the mini mart robbery told law enforcement that a white man with a Chinese accent, whose face was covered by a bandana, entered the store, demanded money, and threatened to shoot him if he did not comply. The clerk handed the man money over the counter. The man pointed the gun, fired it, and said, "give me the rest." The clerk handed him more money and the man left. The shell casing and bullet fragments found at that store also matched the gun found in Arman's car. The robbery was captured on the store's video surveillance. Malik said still shots of the robber taken from the surveillance video in the mini mart, which showed a man with a blue bandana covering his face, wearing a black jacket and a hat, looked like the man who robbed her store. Further, she said the gun the man was holding in the still shots looked similar to the gun that the robber used at her store.
Arman testified that he was gambling at the Marysville Casino late in the evening on April 4, 2012, when he ran into defendant. Defendant was intoxicated and asked Arman for a ride to a friend's house in Sacramento. Arman agreed. Defendant gave Arman turn by turn directions but did not tell him where they were going. Defendant also told Arman he needed money but did not want to borrow money from Arman. Defendant told Arman to stop the car at B and W Liquor. Defendant put a blue bandana on his face, pointed the gun at Arman, and told him to wait or he would kill him or have him killed. A couple minutes later Arman heard a gunshot and defendant came out of the store and got back in the car with money. Defendant again pointed the gun at Arman and told him to drive. He then told him to pull over at a 7-Eleven so he could count his money. When the police pulled up, defendant tossed the gun in the back and put the money in the center console of the car. Arman knew defendant was a Hmong Nation Society gang member, and was afraid of him.
An information charged defendant and codefendant with second degree robbery (Pen. Code, § 211—count 1), and charged defendant with being a felon in possession of a firearm (§ 29800, subd. (a)(1)—count 2). The information alleged, as to count one, that defendant personally discharged a firearm during the commission of the offense (§ 12022.53, subd. (c)), and that codefendant was armed with a firearm (§ 12022, subd. (a)(1)). The information also alleged defendant was not eligible for probation (§ 1170, subd. (h)(3)), had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), and a prior serious felony conviction (§ 667, subd. (a)).
Undesignated statutory references are to the Penal Code. --------
In December 2015, a jury found the defendants guilty of all charges and found all allegations true. In bifurcated proceedings, the trial court found the prior conviction allegations true.
The trial court sentenced defendant to 36 years four months in state prison. The sentence was comprised of the upper term of five years, doubled to 10 years as a result of the strike, plus 20 years for the enhancement allegation that he personally discharged a firearm, one-third the midterm of eight months on count two, doubled to 16 months as a result of the strike, plus five years for the prior serious felony. The trial court awarded defendant 1,580 days presentence custody credits. The trial imposed a restitution fine of $600 (§ 1202.4), a stayed $600 parole revocation fine (§ 1202.45), victim restitution to Malik in an amount to be determined (§ 1202.4, subd. (f)), $80 in court operations fees (§ 1465.8), a $60 conviction assessment (Gov. Code, § 70373), a $10 crime prevention fine (§ 1202.5), a $340.01 jail booking fee (Gov. Code, § 29550.2), and a $62.09 jail classification fee (Gov. Code, § 29550.2).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that we review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
II. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
MURRAY, J.