THE PEOPLE v. JOSE ROBERTO DIAZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendants Jose Roberto Diaz and Gary Velasco Lopez appeal from their convictions of attempted second degree robbery.¹

We appointed counsel to represent appellants in this matter.   After examining the record counsel for both defendants filed a “Wende ” brief raising no issues on appeal and requesting that we independently review the record.   (People v. Wende (1979) 25 Cal.3d 436.)   We advised defendants that they had 30 days within which to personally submit any contentions or issues which they wished us to consider.   No responses were received.

We have examined the entire record and are satisfied that appellants' attorneys fully complied with their responsibilities and that no arguable issues exist.  (People v. Wende, supra, 25 Cal.3d at p. 441.)   We set out below a brief description of the facts and procedural history of the case, the crimes of which the defendants were convicted and the punishments imposed.   (People v. Kelly (2006) 40 Cal.4th 106, 110.)

FACTS AND PROCEEDINGS BELOW

Kevin Contreras, James Acosta, John Acosta and Fernando Maldonado were walking at night on a street in Los Angeles.   A car pulled up and three men got out.   Diaz approached Contreras while Lopez and the other man walked toward the Acostas and Maldonado who were further down the street.

Diaz asked Contreras, “Do you bang?” and “Do you write?”   Contreras responded, “I don't do any of that.”   Diaz told Contreras to lift his shirt.   Contreras lifted his shirt exposing a cell phone and its case.   Diaz grabbed the phone and the case.

Meanwhile Lopez and the unidentified man approached the Acostas and Maldonado.   The unidentified man pointed a gun at John Acosta and asked if he “had anything” for him.   John backed away and Maldonado stepped between them.   Lopez asked James Acosta, “Where are you from?” and James responded, “We're not doing anything.”   Lopez reached toward James' back pocket as if to try to take his wallet but James put his hand over his pocket and backed up against a car to keep Lopez from taking the wallet.   When James refused Lopez' command to hand over his wallet, Lopez punched James on his cheekbone.   James punched Lopez in the mouth.   As James and Lopez continued to fight, Diaz and the unidentified man came to Lopez' assistance striking James with pistols on the back of his head.   Lopez yelled out, “Shoot ‘em, shoot ‘em.”   When a man in a nearby building began yelling he was going to call the police, the three attackers ran back to their car and fled the scene.

The police interviewed Contreras and the Acostas approximately 30 minutes after the incident.   Contreras stated the man who robbed him was black.   James Acosta said the man who tried to rob him was wearing a Cincinnati Reds baseball cap.   The following day the police showed Contreras and the Acostas a photo pack of six black males.   They did not identify any of the men in the pictures.   The next day the police had them look through a book of photographs.   Contreras identified Diaz, who is Hispanic, as the man who robbed him.   James Acosta independently picked out Diaz and Lopez as the persons who tried to rob him.   John Acosta did not recognize anyone in the photographs.   When Lopez was arrested two weeks after the incident the police recovered a Cincinnati Reds cap from his car.   At trial, Contreras, Maldonado and James Acosta identified Diaz and Lopez as the perpetrators of the robbery and attempted robberies.

The jury found Diaz and Lopez not guilty of robbing Contreras but guilty of the attempted robberies of the Acosta brothers.   It also found Diaz guilty of being a felon in possession of a gun.   The court sentenced Diaz to the upper term on the first robbery count and consecutive terms of one-third the midterm on the other two counts, a total of four years four months.   The jury convicted codefendant Lopez of the attempted robberies of the Acosta brothers.   The court sentenced Lopez to the upper term on the first count and a consecutive sentence of one-third the midterm on the other, a total of three years, eight months.

DISPOSITION

The judgments are affirmed.

We concur

FOOTNOTES

FN1. Diaz' appeal from the judgment includes his conviction of one count of being a felon in possession of a firearm.   He admitted that offense to the jury so we do not discuss it further..  FN1. Diaz' appeal from the judgment includes his conviction of one count of being a felon in possession of a firearm.   He admitted that offense to the jury so we do not discuss it further.

CHANEY, J. JOHNSON, J.