People v. Cervantes CA5

Filed 4/9/15 P. v. Cervantes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068409 Plaintiff and Respondent, (Super. Ct. No. F12904610) v.

VALENTINE CERVANTES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan and Ralph Nunez,† Judges.‡ Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

*Before Gomes, Acting P.J., Poochigian, J. and Peña, J.

†Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. ‡Judge Kapetan presided over defendant’s change of plea hearing. Judge Nunez sentenced defendant.

PROCEDURAL AND FACTUAL SUMMARY Defendant Valentine Cervantes was charged in a felony criminal complaint filed on June 26, 2012, with second degree robbery, a felony (Pen. Code, § 211).1 The robbery allegedly occurred on January 14, 2012. The complaint alleged that defendant used a rifle within the meaning of section 12022.5, subdivision (a). The People elected to try defendant, who was over 16 years old when the robbery occurred, as an adult pursuant to Welfare and Institutions Code section 707, subdivision (d). The proceedings were continued for over nine months, with time waivers by defendant, until the preliminary hearing was conducted on March 27, 2013. The first amended criminal felony complaint was further amended to allege defendant used a gun pursuant to section 12022.53, subdivision (b), his birthdate was in May 1995, and the robbery occurred on November 15, 2011. At the preliminary hearing, Officer Vincent Patlan testified he contacted Wesam Musa who worked at the Star Discount Store in Firebaugh to investigate a robbery. Musa told Patlan that one assailant was armed with a gun and the other was armed with a knife. The assailant with a knife was wearing a black ski mask, a black hooded sweatshirt, and gloves. The assailant with a gun was wearing a gray sweater with a red bandana around his face. The assailants ordered Musa to give them all of his money or they would shoot him. Musa gave them $800. The robbery was captured on video.2