People v. Emery CA2/8

Filed 4/14/22 P. v. Emery CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B312853

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA051029) v.

RUBEN ANTHONY EMERY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Daniel J. Lowenthal, Judge. Affirmed.

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Ruben Anthony Emery is serving a life sentence without the possibility of parole for the special circumstance murder and attempted robbery of Henry Chow. Defendant appeals from the order denying his petition for resentencing pursuant to Penal Code section 1170.95. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Almost 20 years ago, defendant was charged with the special circumstance murder of Henry Chow. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17) & (22); count 1.) He was also charged with attempted robbery (§ 211, § 664; count 2). A criminal street gang allegation and various firearm use allegations were also alleged. The charges were based on an incident that occurred in November 2001. Defendant was a member of a Long Beach street gang called the Westside Longos and was visiting at the home of Danny Alvarez, a member of the Eastside Longos, a gang friendly with defendant’s gang. The younger brother of Alvarez went to a nearby store to buy some peanuts and returned crying, saying the shopkeeper had “knocked him down while blocking him from entering the store.” (People v. Emery (May 25, 2006, B180005) [nonpub. opn.].) Defendant became angry and told Alvarez they should “ ‘go teach this motherfucker a lesson.’ ” (People v. Emery, supra, B180005.) According to Alvarez’s trial testimony, when he and defendant got to the store, defendant pulled out his gun and drew the slide. When Alvarez expressed hesitancy, defendant said “ ‘Are you going to ride when I smoke the motherfucker?’ ” (Ibid.) Out of fear for his own safety, Alvarez went inside the store with defendant. Defendant immediately demanded “shopkeeper