People v. Bautista CA6

I. INTRODUCTION

Defendant Jose Bautista appeals after a jury convicted him of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);1 count 1), attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 2), and willful discharge of a firearm with gross negligence (§ 246.3, subd. (a); count 3). The jury found true allegations that defendant personally used and intentionally discharged a firearm during the commission of the robbery and attempted robbery. (§ 12022.53, subds. (b) & (c).) The trial court sentenced defendant to a 22-year prison term, consisting of a two-year term for the robbery charged in count 1 and a 20-year term for the associated firearm discharge enhancement, with a concurrent term for count 2 and a stayed term for count 3.

1 All further statutory references are to the Penal Code unless otherwise indicated. On appeal, defendant contends: (1) his trial counsel was ineffective for failing to pursue a motion to exclude evidence of gunshot residue; (2) the prosecutor committed misconduct by commenting on defendant’s failure to testify and by attacking the integrity of defendant’s trial counsel; and (3) the trial court erred by failing to…