People v. Herrera CA2/5

Filed 8/18/16 P. v. Herrera CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B266568

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA129730) v.

JAVIER ERNESTO HERRERA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed as modified. John J. Uribe, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

The District Attorney in Los Angeles charged defendant Javier Ernesto Herrera (defendant) with three counts of second degree robbery in violation of Penal Code section 1 211. The District Attorney also charged defendant with several sentencing enhancements, including among others, enhancements alleging defendant personally used a deadly weapon (a knife) in one of the robberies and that defendant had served a prior prison term as described in section 667.5(b). Defendant’s attorney on appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We correct two sentencing errors but otherwise affirm the judgment.

I. BACKGROUND The count 1 robbery charge arose out of the December 20, 2012, robbery of Alexander Perez while he was travelling on the MTA Blue Line at about 1:00 a.m. The jury was unable to reach a verdict on this charge, and it was ultimately dismissed. The count 2 charge, captured on video by security cameras, concerned the January 13, 2013, robbery of Jorge Baltazar. Baltazar testified that the encounter occurred about 4:00 a.m., when defendant approached him on a bicycle and started talking with him. As shown by the video, defendant hit Baltazar, knocked him to the ground, and kicked him. Defendant took Baltazar’s wallet, $280, and his cell phone. The count 3 charge concerned the January 27, 2013, robbery of Jose Reyes Diaz. Diaz testified that defendant rode up to him on a bicycle and offered him a ride at about 4:00 a.m. Diaz took the ride, and at some point defendant stopped the bicycle and demanded money from Diaz. Diaz gave defendant his money, but defendant demanded more. Defendant reached toward his ankle, and Diaz later told sheriff’s deputies that defendant pulled a 5-inch knife from his sock. (At trial, Diaz testified he did not remember actually seeing a knife.) Diaz did not have more money, so he gave his cell phone to defendant instead.