Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA055322, Susan Speer, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Michael Cooper appeals from the judgment entered following his conviction by jury on one count of second degree robbery. (Pen. Code, § 211.) Appellant was sentenced to the midterm of three years, doubled pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus 10 years for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)), plus five years for a prior conviction (Pen. Code, § 667, subd. (a)(1)), for a total of 21 years. The trial court imposed and stayed prior prison term enhancements under Penal Code section 667.5, subdivision (b), but we modify the judgment to strike those enhancements. We affirm in all other respects.
On March 25, 2007, around 10:00 p.m., Alla Mishiyeva parked her car in front of her brother’s house in Sherman Oaks. She got out of her car and was taking things out of the car when she heard a voice behind her. She turned around and saw appellant. Appellant told Mishiyeva, “Give me your purse, ” and pointed a gun at her temple. After Mishiyeva gave appellant her purse, appellant asked if she had any money. Mishiyeva replied that she did not, and appellant asked what she was holding in her hands. Mishiyeva opened her hands and showed appellant that she had a cell phone in one hand and a bunch of keys in the other. Appellant took the keys but not the cell phone.
Appellant then asked what Mishiyeva had in her car, looked inside, and saw her laptop computer on the back seat. Mishiyeva “pleaded with him not to take the laptop, explaining to him that this was [her] work laptop, all of [her] work information was in it.” Mishiyeva was afraid she might lose her job if she lost the laptop. Appellant took the laptop, then told Mishiyeva not to move or make a sound for a while, then he turned around and left. Mishiyeva noticed a car parked nearby with the ignition on. After appellant got into the car, the car quickly drove away.
Mishiyeva waited about five minutes, called her brother, and asked him to come out to get her because she was too afraid to move. Mishiyeva called the police, told them what happened, and gave a description of appellant. Mishiyeva’s car was parked under a lamppost, so she saw appellant clearly.
Mishiyeva and her brother went to order new locks for her house, and when they returned around 1:00 a.m. on March 26, Mishiyeva’s car was gone. They called the police and the LoJack company to ask them to track the car.
On March 26, Mishiyeva went to the police station and identified a photograph of appellant from a photo lineup. On March 27, the police called Mishiyeva to tell her that her car and some of her property had been found.
Los Angeles Police Officer David Jamieson testified that, on March 26, he and his partner were on patrol when they were notified that there was a LoJack stolen vehicle in the area. They found the car and parked two blocks down the street to watch it. After about an hour, they saw a woman walk from a house to the car, get in, and drive away. The officers followed her, and she parked the car at the curb. The officers ordered her out of the car, took her into custody, and asked her whose car she was driving.
The officers then returned to the house where the car had been parked, knocked on the door, and took appellant into custody. After Officer Jamieson contacted the detectives in charge of the case, he noticed a leather case for a laptop computer on top of a trash can on the side of the house. Officers searched other items in the trash and found a trash bag containing mail and papers addressed to Mishiyeva.
Detective John Dunlop testified that he prepared the photo lineup after he saw that appellant matched Mishiyeva’s description of the suspect, and that Mishiyeva chose appellant’s picture from the six-photo lineup. When Detective Dunlop searched the residence where appellant was arrested, he found Mishiyeva’s key ring, $350 or $360 in cash, the laptop case, and the bag with her mail and paperwork.
The information charged appellant with one count of second degree robbery and one count of grand theft auto. (Pen. Code, §§ 211, 487, subd. (d)(1).) Appellant pled not guilty and admitted the allegations pursuant to Penal Code section 667.5, subdivision (b), of two prior convictions.
During deliberations the jury asked a question regarding the auto theft charge: “If the defendant was not the one who went back to the scene of the crime to take the car, but rather handed the key to someone else who did, is he still accountable for the full charge of grand theft auto if found guilty?” After the jury found appellant guilty of the second degree robbery charge, the court dismissed the auto theft charge on the People’s motion, pursuant to Penal Code section 1385.
During voir dire, defense counsel moved to dismiss the jury panel because there were no African-Americans on the panel. The court stated that the jury pool was randomly drawn from the district where the crime was committed, and the district draws few African-Americans. The court concluded there was an insufficient showing to justify dismissal of the panel, and denied the motion.
The jury found appellant guilty of second degree robbery and found true the allegation that he personally used a firearm. The prosecutor indicated that there had been numerous discussions regarding sentencing and requested a 21-year sentence. The court asked if the prosecution sought additional sentencing on the one-year priors, and the prosecutor replied, “No. Or we can run that concurrent. 21 would be appropriate.” The court agreed.
The trial court denied appellant’s Romero motion to strike a prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), reasoning that the prior strike was a serious offense and the current offense was extremely serious and violent. The court sentenced appellant as indicated above, stating that appellant’s prior convictions were numerous and increasing in severity. The court also imposed and stayed one-year terms for each of appellant’s two prior state prison terms, with the stay to become permanent upon the completion of the 21-year term. Appellant received credit for 1, 053 actual custody days and 157 good time/work time days, for a total of 1, 210 days. The court ordered victim restitution in the stipulated amount of $2,750, imposed a $4,200 restitution fine, $30 court security fee, $30 criminal assessment fine, and suspended a $10 theft fine for inability to pay. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On July 29, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On August 20, 2010, appellant filed a supplemental brief, raising three issues.
First, appellant contends that the trial court erred when it stayed the two one-year sentence enhancements by failing to give any reason in the record for staying the enhancements. Second, appellant challenges the racial makeup of the jury because he is African-American and there were no African-Americans on the jury panel. Third, appellant claims ineffective assistance of counsel based on his attorney’s failure to challenge the jury panel and to raise inconsistencies in witness statements and testimony.
I. Penal Code Section 667.5, Subdivision (b)
“Section 667.5, [subdivision] (b) provides for an enhancement of the prison term for a new offense of one year for each ‘prior separate prison term served for any felony, ’ with an exception not applicable here involving a prior five-year commitment ‘washout’ period of freedom from custody and further felony offenses. Once the prior prison term is found true within the meaning of section 667.5, [subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
When the trial court indicated that it was imposing and staying the two one-year terms for the prior prison terms pursuant to Penal Code section 667.5, subdivision (b), it did not give any reason for the stay. Neither party asked the court for a reason. However, the People previously had indicated that they were not requesting the additional one-year terms. In addition, it is clear from the transcript that the People agreed with the 21-year sentence imposed by the court.
“[T]he failure to either impose or strike a section 667.5 prior prison term enhancement pursuant to section 1385, subdivision (a) is a jurisdictional error which may be corrected for the first time on appeal. [Citations.]” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) Because the record indicates that the prosecution did not seek the one-year enhancements and did not argue against the trial court’s decision not to include the one-year enhancements in appellant’s sentence, the prior prison term enhancements under Penal Code section 667.5, subdivision (b), must be stricken.
II. Racial Makeup of Jury
“‘Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. [Citations.] That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. [Citation.] “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” [Citations.] The relevant “community” for cross-section purposes is the judicial district in which the case is tried. [Citations.] If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. [Citation.]’” (People v. Burney (2009) 47 Cal.4th 203, 225-226.)
Defense counsel objected to the jury, observing that there were no African-Americans in the panel and thus that appellant, being African-American, did not have a jury of his peers. The trial court reasoned, however, that the jurors were drawn at random and that few African-Americans are drawn from that district. Defense counsel did not identify any way in which the jury was selected that was constitutionally impermissible.
In order to establish a prima facie case, appellant must show not only “‘statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. [Citations.] When a county’s jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. [Citations.]’ [Citation.]” (Burney, supra, 47 Cal.4th at p. 226.) Appellant has failed to show that the makeup of the jury panel was due to any improper feature of the jury selection process. Because there is no indication in the record that the manner in which the jury was selected violated the federal or state Constitution, appellant has failed to establish a prima facie case.
III. Ineffective Assistance of Counsel
Appellant claims ineffective assistance of counsel based on his trial counsel’s failure to challenge the racial makeup of the jury and various witness statements. “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.... If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 391; see Strickland v. Washington (1984) 466 U.S. 668, 694.)
Here, the record sheds no light on counsel’s actions. In addition, we note that defense counsel did challenge the racial makeup of the panel, but the court denied the motion. We therefore reject appellant’s claim of ineffective assistance of counsel.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is modified to strike the prior prison term enhancements under Penal Code section 667.5, subdivision (b). As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., MANELLA, J.