People v. Rosales CA2/6

Filed 8/27/20 P. v. Rosales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B302747 (Super. Ct. No. 19F-02997-A) Plaintiff and Respondent, (San Luis Obispo County)

v.

SERGIO ROSALES,

Defendant and Appellant.

Sergio Rosales appeals the judgment entered after he pleaded no contest to second degree robbery (Pen. Code,1 § 211) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). Appellant also admitted allegations that he personally used a deadly weapon in committing the offenses (§ 12022, subd. (b)(1)) and that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).) Pursuant to

All statutory references are to the Penal Code unless 1

otherwise stated.

appellant’s negotiated plea, the trial court sentenced him to an aggregate term of 13 years in in state prison.2 Because appellant pleaded no contest prior to a preliminary hearing, the relevant facts are derived from the probation report. On the night of February 18, 2019, San Luis Obispo County Sheriff’s deputies responded to a call regarding a robbery in the Pirates Cove parking lot. Appellant, an associate of the West Park criminal street gang, and B.A. were apprehended after deputies saw them running away from the scene of the crime. The deputies also made contact with Kenneth Ulrich, the victim of the assault. Ulrich said he was sitting in his truck in the parking lot when appellant and B.A. approached him. Appellant pointed what appeared to be a semiautomatic handgun at Ulrich and said, “Get the fuck out of the car.” After Ulrich said he had nothing to steal, appellant “racked” the gun and told Ulrich, “Get the fuck out, or I’ll kill you.” Appellant took Ulrich’s keys out of the ignition and removed Ulrich’s iPhone and iPad from the truck. After Ulrich got out of the truck, appellant continued pointing the gun at him and said, “I’ll kill you, get the fuck away from the truck.” Ulrich replied, “[s]hoot me then” and began yelling for someone to call the police. Appellant and B.A. ran away, dropping Ulrich’s iPad in the process. Ulrich pursued appellant and B.A. in his truck. Shortly thereafter, sheriff’s deputies arrived and appellant and B.A. were apprehended. A BB gun that resembled a semi-