THE PEOPLE v. ERIC OLIVEROS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Oliver Williams, an 80–year–old armed security guard, was on duty at a convenience store in Pomona shortly before midnight on September 30, 2009.   A car pulled into the store's parking lot, where Williams sat inside his car writing a report.   Two men, later identified as Eric Oliveros and Ricardo Rivera,¹ got out.   When Rivera began urinating, Williams shined a bright, handheld spotlight on him.   Rivera and Oliveros approached Williams's car;  and Rivera and Williams argued.   While pointing a handgun at Williams, Rivera threatened to shoot him.

Williams picked up his own gun and kicked open the door of his car.   The partial opening of the door caused Rivera's gun to fire.   As Rivera and Oliveros fled, Rivera fired one or two more shots;  Williams fired three shots at Rivera, hitting him.   Oliveros then took Rivera's gun and shot at Williams, who returned the fire.   An officer from the Pomona Police Department arrived at this point, and the confrontation terminated.

Oliveros was arrested and charged in an information with one count of assault with a firearm (Pen.Code, § 245, subd. (a)(2)),² with a special allegation he had personally used a firearm in committing the offense.³ (§ 12022.5.) A jury convicted Oliveros as charged and found true the firearm-use allegation.

The trial court sentenced Oliveros to an aggregate state prison term of 12 years, consisting of the lower term of two years for assault with a firearm, plus 10 years for the firearm-use enhancement.   Oliveros received presentence custody credits of 304 days (265 actual days and 39 days of conduct credits).   The court ordered Oliveros to pay a $30 security assessment, a $30 criminal conviction assessment and a $200 restitution fine.   The court imposed and suspended a parole revocation fine pursuant to section 1202.45.

Oliveros filed a timely notice of appeal.   We appointed counsel to represent Oliveros on appeal.   After examination of the record counsel filed an opening brief in which no issues were raised.   On February 25, 2011 we advised Oliveros he had 30 days within which to personally submit any contentions or issues he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied Oliveros's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106;  People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Codefendant Ricardo Rivera is not a party to this appeal..  FN1. Codefendant Ricardo Rivera is not a party to this appeal.

FN2. Statutory references are to the Penal Code..  FN2. Statutory references are to the Penal Code.

FN3. Oliveros was originally charged with attempted murder (§§ 187, 664), as well as aggravated assault.   The jury was unable to reach a verdict at Oliveros's first trial.   The trial court declared a mistrial, finding an implied acquittal as to the attempted murder count and ruling the jury was hopelessly deadlocked as to both the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a), 664) and the aggravated assault count.   Prior to retrial, the People moved to dismiss the lesser included offense of attempted voluntary manslaughter..  FN3. Oliveros was originally charged with attempted murder (§§ 187, 664), as well as aggravated assault.   The jury was unable to reach a verdict at Oliveros's first trial.   The trial court declared a mistrial, finding an implied acquittal as to the attempted murder count and ruling the jury was hopelessly deadlocked as to both the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a), 664) and the aggravated assault count.   Prior to retrial, the People moved to dismiss the lesser included offense of attempted voluntary manslaughter.

WOODS, J. JACKSON, J.