People v. Agundez CA5

Filed 6/26/14 P. v. Agundez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F065745 Plaintiff and Respondent, (Super. Ct. No. F1190049) v.

EDGAR IVAN AGUNDEZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- A jury convicted appellant Edgar Agundez of second degree robbery with personal use of a firearm. (Pen. Code, §§ 211, 212.5, subd. (c), 12022.53, subd. (b).)1 He was 1 All statutory references are to the Penal Code unless otherwise indicated.

sentenced to 12 years in prison. On appeal, Agundez contends the trial court erred by giving a standard jury instruction on flight pursuant to CALCRIM No. 372. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Agundez was one of three suspects arrested in connection with the robbery of a gas station in northeast Fresno on January 4, 2011. Two eyewitnesses identified him as the perpetrator during field lineups conducted shortly after the offense occurred. Agundez was later charged with one count of second degree robbery and an enhancement allegation for use of a firearm during the commission of the crime. The matter was tried before a jury in 2012. The prosecution’s case included testimony from Eleasar Rosales, an employee of the AM/PM gas station and convenience store located at the intersection of Blackstone and Bullard Avenues. Mr. Rosales was working the graveyard shift on the night in question. At approximately 3:30 a.m., he observed a sport utility vehicle (SUV) pull into the gas station and park off to the side of the store. A man exited the SUV, walked into the store, and robbed him at gunpoint. Mr. Rosales identified Agundez in court as the gunman/robber. Mr. Rosales was standing behind a cash register when the robbery occurred. Agundez pointed a pistol at him and told him to “back up,” which he did. Agundez then removed approximately $200 from the register and left the store, heading in the direction of the parked SUV. Mr. Rosales lost sight of Agundez as he was leaving and did not actually see him enter the SUV, but saw the vehicle drive away moments later. A customer named Matthew Lung witnessed part of the robbery. Mr. Lung testified to seeing a gold-colored SUV parked in front of the AM/PM when he arrived at the store to purchase a snack. The vehicle was occupied by a female driver and a male passenger. Upon entering the store, Mr. Lung saw a man, whom he identified at trial as Agundez, pointing a gun at Mr. Rosales. Mr. Lung quickly exited and walked across the