P. v. Romero CA2/6

Filed 7/17/13 P. v. Romero CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B238520 (Super. Ct. No. BA383965-01) Plaintiff and Respondent, (Los Angeles County)

v.

KEVIN ROMERO,

Defendant and Appellant.

Kevin Romero appeals his conviction, by jury, of one count of carjacking (Pen. Code, § 215, subd. (a))1, eight counts of second degree robbery (§ 211) and one misdemeanor battery. (§ 242.) The trial court sentenced appellant as a second strike offender to a term of 31 years in state prison. Appellant contends one of the robbery convictions is not supported by substantial evidence because the victim did not testify that he was deprived of property by force or fear. Appellant further contends the trial court erred by not recognizing its discretion to impose concurrent rather than consecutive terms for robberies committed on the same occasion. Finally, appellant also asks us to determine whether the trial court abused its discretion by denying, after an in camera review, disclosure of the personnel record of a police officer involved in his arrest.

1 All statutory references are to the Penal Code unless otherwise stated. 1

(Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We remand the matter for a new sentencing hearing and in all other respects affirm. Facts On April 23, 2011, appellant approached four U.S.C. students as they were getting into a car. He put his hand in his sweatshirt pocket and raised it so that he appeared to be holding a gun. After he asked for their property, the four students put their wallets and/or cell phones in the car. Appellant took the property, got into a car that was waiting for him and left. Three of the four students testified that they gave up their property because they were afraid of appellant. The fourth student, David Herrera, did not testify. On April 25, appellant approached Carlos Gutierrez while Gutierrez was sitting in his parked car. Appellant had his left hand inside his pocket as if he was holding something. Gutierrez got out of the car when appellant directed him to, because Gutierrez was afraid he would be hurt if he did not. Appellant then took Gutierrez's car and all of the personal property inside it, including Gutierrez's cell phone. On April 26, appellant committed a third robbery, this time of four Chinese students attending U.S.C. During this incident, appellant worked with an accomplice, who threatened the students with a knife. He personally threatened the victims with a "U-lock" taken from one of their bicycles. Each victim handed money and personal property to either appellant or his accomplice because each victim feared for his or her safety. Appellant was arrested on April 28, while driving the car he stole from the second victim on April 25. He told the arresting officer that his name was David Herrera. Mr. Herrera's wallet was found in appellant's pocket. The jury found appellant guilty of eight counts of second degree robbery, one count of carjacking and one misdemeanor count of attempted second degree robbery. Subsequently, the trial court found that appellant had one prior serious felony conviction, also for robbery. Neither party raised the question of whether concurrent terms could be imposed at his sentencing hearing. Instead, their arguments were limited to the questions