The People v. Simpson CA3

Filed 9/16/13 P. v. Simpson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C071164

v. (Super. Ct. No. 11F5308)

LUCAS EUGENE SIMPSON,

Defendant and Appellant.

Defendant Lucas Eugene Simpson pleaded no contest to attempted first degree robbery and assault with a firearm. He also admitted allegations that he acted in concert with two or more persons and that he was armed with a firearm in the commission of the offense. The trial court ultimately sentenced defendant to seven years four months in prison. Defendant now contends (1) he must be resentenced because the attempted robbery in concert did not occur within an inhabited dwelling as required by Penal Code

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section 213, subdivision (a)(1)(A)1; and (2) if we conclude his first contention is forfeited, his trial counsel was ineffective for failing to preserve the issue on appeal. We conclude (1) defendant‟s first contention is not cognizable on appeal, and (2) as for his second contention, he has not established that his trial counsel was deficient. We will affirm the judgment. BACKGROUND Defendant, along with Michael Johnson, Chane Finch and Michael Houchins, planned to steal medical marijuana from Michael High‟s home. On the night of the offense, High was at home with two visitors, Amanda Baxter and Isabella Vasquez. Houchins went to High‟s residence ostensibly to set up a drug deal, and texted his cohorts when he thought it was a good time to begin the crime. When dogs started barking, High and Vasquez went outside to investigate. They were met by defendant, Johnson, and Finch, who were armed, dressed in tactical gear, and portraying themselves as law enforcement officers serving a warrant. High thought they were not law enforcement officers and fought with two of them. The third offender went inside the house, grabbed Baxter, ordered her outside, and hit her on the head. High eventually fought off the offenders, but in the process he was fired upon and stabbed, sustaining a ruptured spleen and punctured diaphragm. After the preliminary hearing, defendant filed a motion to set aside the information pursuant to section 995. During oral argument on the motion, defense counsel added a new contention: that the in concert enhancement allegation applied only to completed robberies and therefore did not apply to attempted robbery as a matter of law. The trial court continued the hearing to allow the prosecutor the opportunity to address the issue. At the continued hearing, argument was confined to whether the in concert enhancement