People v. Nunez CA3

Filed 6/15/15 P. v. Nunez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C073733

Plaintiff and Respondent, (Super. Ct. No. 98F06656)

v.

JESUS NUNEZ,

Defendant and Appellant.

In 1999 a jury found defendant guilty of possessing a short-barreled shotgun and carrying a loaded firearm while an active participant in a street gang. (Pen. Code, §§ 12020, subd. (a), 12031, subd. (a)(2)(C).)1 The court sentenced defendant to 25 years to life in state prison. In a previous, unpublished opinion we affirmed the judgment. (People v. Nunez (May 8, 2001, C033824) (Nunez).) Defendant filed a petition for recall

1 All further statutory references are to the Penal Code unless otherwise designated.

1

of sentence and resentencing under section 1170.126. Following denial of the petition, defendant filed this appeal. We shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND2 Officer Katherine Lester was on patrol in North Sacramento in a marked police car quite early one morning in July 1998. As she entered the intersection of Beaumont and Bowles Streets, a Thunderbird failed to yield and nearly hit her. Lester moved backward to pull next to the Thunderbird and warn the driver to slow down. Defendant, who was seated behind the driver, leaned out of the window and aimed a sawed-off shotgun at the officer. As Lester ducked, she heard a shotgun blast and squealing tires. Lester looked up to see the Thunderbird speeding away. As the car passed a house on Beaumont Street, Lester saw a shotgun fly out the window of the car and land in the street. Officer Lester gave chase in the patrol car. A few blocks later, the occupants abandoned the car and fled on foot. Lester found defendant hiding in the bushes and arrested him. John Cossey was playing cards with a friend in his house near the corner of Bowles and Beaumont when he heard the shotgun blast. Cossey went outside and saw a patrol car following another car down the street. He also saw a neighbor walk across the street toward a sawed-off shotgun lying on the pavement. He estimated the length of the gun at 18 to 20 inches. When people started to gather, Cossey left to call the police. The gun had disappeared by the time he returned. A sawed-off shotgun was later recovered and introduced at trial as People’s exhibit No. 55. The barrel was approximately 14 inches long, and the overall length was 26-1/4 inches. Cossey testified it was not the gun he had seen in the street that night,