Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FWV030007 Gerard S. Brown, Judge.
NARES, J.
This appeal by Daniel Santano Arenas proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
Arenas was arrested as a result of an incident in which he assaulted his girlfriend and her sister-in-law, and had an ensuing confrontation with police, at a Shakey's Pizza Parlor restaurant. Based on the incident, he was charged with the following crimes:
(1) possession of a firearm by an ex-felon (count 1); (2) exhibiting a loaded firearm in a rude, angry or threatening manner (count 2); (3) misdemeanor battery (count 3); (4) assault with a semiautomatic firearm (count 4); (5) exhibiting a firearm in the presence of an officer (count 5); (6) exhibiting a deadly weapon to an officer to resist arrest (count 6); (7) resisting an officer (count 7); (8) assault on an officer with a semiautomatic firearm (counts 8-10); and (9) discharge of a firearm with gross negligence (count 11). (The facts underlying the incident and Arenas's prosecution are set forth more fully in People v. Arenas (Dec. 18, 2007, D050417) [nonpub. opn.] (Arenas).)
At trial, a jury convicted Arenas of all charges against him and found true the following sentencing enhancement allegations: as to counts 1 and 5 through 11, that the offenses were for the benefit of, at the direction of or in association with a criminal street gang; as to counts 4 and 7, that Arenas personally used a firearm; and as to counts 8 through 10, that he personally and intentionally discharged a firearm. (Arenas, supra, D050417.) The jury made true findings that Arenas had suffered two strike prior convictions, two serious felony prior convictions and three prior prison terms. (Ibid.)
Thereafter, the trial court dismissed one of Arenas's two strike prior convictions and sentenced him to a total prison term of 64 years four months, consisting of: (1) 14 years for count 8, plus 20 years for the related gun discharge enhancement and 10 years for the related violent felony gang enhancement; (2) one year four months for count 1, plus one year for the related gang enhancement; (3) four years for count 4, plus one year for the related gun use enhancement; (4) 10 years for Arenas's two prior serious felony convictions; and (5) three years for his three prior prison terms. (Arenas, supra, D050417.) The sentences on the remaining felony counts and enhancements were either imposed to run concurrently or stayed. (Ibid.)
Arenas appealed, raising numerous challenges to the judgment of conviction. Specifically, he contended that (1) the trial court erred in (a) denying his mid-trial request for appointment of counsel to represent him, (b) discharging a juror during trial, (c) imposing two separate gang enhancements in violation of Penal Code section 654 and (d) imposing consecutive sentences on the firearm possession and assault with a firearm counts (counts 1 and 4, respectively); and (2) there was insufficient evidence to support (a) the personal and intentional gun use enhancements and (b) the gang enhancements. (Arenas, supra, D050417.) This court concluded that the imposition of sentence on both of the five-year prior serious felony conviction enhancements was error because those prior serious felony convictions were not brought and tried separately as required pursuant to Penal Code section 667, subdivision (a)(1), and that the abstract of judgment erroneously provided for four one-year prior prison term enhancements (rather than the three such enhancements alleged by the prosecution, found true by the jury and imposed by the court). (Arenas, supra, D050417.)
The court modified the judgment to strike the second five-year prior serious felony enhancement, affirmed the judgment as modified and remanded the matter with directions to the superior court to file a corrected abstract of judgment. (Arenas, supra, D050417.) The total sentence after the modifications was 59 years four months. (Ibid.) Arenas filed a petition for review and a petition for writ of habeas corpus with the California Supreme Court; both were summarily denied.
Arenas filed a petition for a writ of habeas corpus in the United States District Court. (Arenas v. Walker (C.D. Cal. Aug. 20, 2009, EDCV No. 08-00943-GAF (MLG) 2009 U.S. Dist. Lexis 89867.) In it, Arenas reiterated a number of the arguments he raised, unsuccessfully, in his appeal and additionally contended that the trial court erred in denying him the right to call numerous witnesses and the opportunity to present certain defense evidence and that the prosecutor knowingly introduced false testimony at trial. (Arenas also argued that he suffered ineffective assistance of appellate counsel, although he later withdrew that claim.) The district court denied Arenas's petition except as to his contention that the evidence was insufficient to support the jury's true findings on the gang enhancements. In that regard, it granted the petition and sent the matter back to the state court for resentencing. (Arenas v. Walker (C.D. Cal. Sep. 28, 2009, EDCV No. 08-00943-GAF (MLG) 2009 U.S. Dist. Lexis 89850.)
In connection with the resentencing hearing, Arenas's counsel filed a brief contending that (1) the jury had made inconsistent findings at trial, concluding as to count 8 that Arenas intentionally fired a weapon upon a peace officer and as to count 11 that he willfully discharged his weapon in a grossly negligent manner; and (2) the admission at trial of evidence that Arenas was a member of a criminal street gang was unduly prejudicial and caused the jury to find him guilty. The superior court (notably, the same judge who presided over the trial and imposed the original sentence) questioned whether it had the authority to consider Arenas's arguments, rejected those arguments on their merits to the extent it had such authority, and then sentenced Arenas to 48 years 4 months in prison (a reduction of the original sentence term by the 11 consecutive years imposed for the gang enhancements).
Arenas again appeals.
DISCUSSION
Arenas's counsel has filed a brief indicating that he has been unable to identify any argument for reversal and asking this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436. In accordance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel's brief identifies one issue as possible, but not arguable, on appeal, to wit, whether the trial court on remand improperly adopted the sentencing scheme adopted by the earlier sentencing court without making reasoned sentencing choices.
This court also invited Arenas to file a brief on his own behalf and he has done so. In it, he argues that (1) the jury made inconsistent findings at trial, concluding as to count 8 that he intentionally fired his weapon upon a peace officer and as to count 11 that he willfully discharged his weapon in a grossly negligent manner; and (2) the admission at trial of evidence that he was a member of a criminal street gang was unduly prejudicial and caused the jury to find him guilty. However, pursuant to long-established law, an appellant is generally precluded from raising issues on appeal that he could have, but failed to, raise in the trial court in the first instance. (E.g., People v. Tafoya (2007) 42 Cal.4th 147, 166.) The issues that Arenas now seeks to raise could have been raised, but were not, at his trial or on his first appeal and, for this reason, they do not support a reversal of the judgment.
We have reviewed the record in accordance with Wende and Anders and have not found any reasonably arguable appellate issues. Competent counsel has represented Arenas on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.