People v. Cruz CA4/2

I.

FACTS AND PROCEDURAL BACKGROUND2

By information, the People charged defendant with attempted robbery (Pen.

Code,3 §§ 664, 211, count 1), robbery (§ 211, count 2), unlawful possession of a firearm

by a felon (§ 29800, subd. (a)(1), count 3), and unlawful possession of ammunition by a

felon (§ 30305, subd. (a), count 4). The People alleged defendant personally used a

firearm during the commission of counts 1 and 2 (§§ 12022.5, subd. (a), 1192.7,

subd. (c)(8)), and that defendant suffered two prior serious felony convictions for

purposes of the three strike law (§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1)).

1 In a separate petition for writ of habeas corpus (case No. E083771), defendant argues the police failed to preserve potentially exculpatory evidence—to wit, his vehicle and any DNA evidence that might have been located inside it—and his trial attorney rendered ineffective assistance of counsel by not arguing to the jury the relevance of that evidence. By separate order, we summarily deny the petition.

2 Defendant does not challenge the sufficiency of the evidence to support his convictions. As explained, post, we conclude defendant has not established his…