People v. Olivas CA2/8

Filed 2/23/15 P. v. Olivas CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B253080

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA127854) v.

LUIS ROBERTO OLIVAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed.

Kenneth J. Sargoy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline and Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Luis Roberto Olivas appeals from a judgment which sentences him to 33 years in prison for, among other things, carjacking and robbery. He contends there is insufficient evidence to support his conviction and he received ineffective assistance of counsel. He also contends the trial court’s dual use of facts resulted in sentencing error. We affirm the judgment. FACTS In an information dated May 7, 2013, Olivas was charged with second degree robbery of Alex Albarran (count 1), carjacking a vehicle in the possession of Mariana M. (count 2), second degree robbery of Mariano Herrera (count 3), and possession of a firearm by a felon (count 4). (Pen. Code, §§ 211, 215, subd. (a), 29800, subd. (a)(1).)1 It was further alleged as to the first three counts that Olivas personally used a firearm, a handgun, within the meaning of section 12022.53, subdivision (b), causing the above offense to become a serious felony pursuant to section 1192.7, subdivision (c)(8) and a violent felony within the meaning of section 667.5, subdivision (c)(8). It was alleged as to all counts that Olivas had suffered one prior strike, one prior serious felony conviction and had served a prior prison term. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a)(1), and 667.5, subd. (b).) I. Facts Underlying Count 1 for Second Degree Robbery On November 18, 2012, Alex Albarran was robbed while walking home in the city of Bell Gardens at approximately 2:30 a.m. Albarran described the person who robbed him as a 20- to 25-year old man who was five feet 11 inches tall and about 200 pounds. The man crossed the street and stood one or two feet away from Albarran when he pulled out a handgun and asked Albarran for his “stuff.” Albarran gave him his wallet and phone. Bell Gardens Police Officer John Acosta responded to Albarran’s call. Based on Albarran’s description, Officer Acosta directed Officer Victor Arana to create a six-pack photographic lineup of a male Hispanic, 20 to 25 years old with a mustache, wearing a