People v. Alem CA1/1

Filed 2/21/14 P. v. Alem CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A136447 v. DANIEL ALEM, (Alameda County Super. Ct. No. 166881) Defendant and Appellant.

INTRODUCTION In this appeal, defendant Daniel Alem challenges his conviction for attempted robbery and attempted murder. The central issue in the appeal focuses on the trial court’s instruction concerning when a robbery is completed. The jury was advised: “The application of force or fear may be used either when taking the property or when carrying the property away. [¶] And the crime of robbery remains in progress . . . until the perpetrator has reached a place of temporary safety.” Defendant challenges this notion on the scope of the robbery. We conclude the instruction is a correct statement of the law and applies to the facts of this case. STATEMENT OF THE CASE The district attorney filed an information charging defendant in count one with attempted second degree robbery (Pen. Code,1 § 211), in count two with attempted murder (§§ 187, subd. (a), 664), and in count three with assault with a semiautomatic firearm (§ 245, subd. (b)). 1 All statutory references are to the Penal Code unless otherwise indicated.

The information further alleged that in the commission of counts one and two, defendant personally and intentionally discharged the firearm and caused great bodily injury (§§ 12022.7, subd. (a), 12022.53, subd. (d)), that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that defendant personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)). The information also alleged regarding count three that defendant personally used a firearm. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) The information alleged as to all three counts that defendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The jury found defendant guilty on June 26, 2012 on all counts and found the allegations enumerated above true. The court sentenced defendant on August 24, 2012 to 32 years to life. He filed a notice of appeal on August 28, 2012. STATEMENT OF FACTS A. Prosecution Case Natsagdorj Gantumur, a native of Mongolia who came to the United States in 2001, was walking at 11:00 p.m. on December 1, 2010. He was on Madison Street in Oakland, going to visit a friend. At the time, he was texting on his cell phone. Defendant approached Gantumur and grabbed the cell phone from him, running away. Gantumur had not dropped his phone before the snatch by defendant. Gantumur chased after defendant, yelling, “Give me back my phone.” He caught up with defendant at the intersection of 15th and Madison Streets. As Gantumur confronted defendant, defendant turned, facing Gantumur and pulled gun from his jacket. He pointed the weapon at Gantumur. Thinking defendant was going to shoot him, Gantumur grabbed the hand holding the weapon, pushing it away from his torso. Once Gantumur physically moved the hand down to defendant’s side, defendant began firing the weapon. With this, Gantumur pushed defendant to the ground and Gantumur fell on top of him. Defendant kept firing the gun. Gantumur began hitting him in the face with his fist while using his other hand to restrain the hand holding the weapon. Eventually, defendant stopped firing because the weapon was empty. Gantumur knew this when he