Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA071722, Antonio Barreto, Jr., Judge.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Miar Kaptali Gainer appeals from a judgment of conviction after a jury found him guilty of robbery. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal. We have reviewed the entire record and find no arguable issue. We affirm.
FACTUAL BACKGROUND
Appellant’s conviction arose from an incident that occurred on July 3, 2009. On that date, at approximately 9:30 p.m., appellant and two other men entered a medical marijuana dispensary called the Gourmet Green Room on Lincoln Boulevard in Los Angeles. Floyd Kurzon, the security guard at the dispensary, buzzed appellant and his two companions into the dispensary’s security checkpoint area. Appellant had just been to the dispensary the day before, on July 2, 2009, when he had registered for the first time as a patient of the dispensary. Kurzon had performed the initial intake of appellant on July 2.
After Kurzon buzzed in appellant and his companions on July 3, appellant presented his identification to Kurzon at a glass transaction window. Kurzon checked his identification and requested identification from appellant’s companions. Appellant’s companions acted as if they could not hear Kurzon from the other side of the window when he asked for identification. Kurzon went to the door connecting the security checkpoint to the waiting room, where Kurzon was stationed, to try to speak to the men through the door. As soon as Kurzon unlocked the door, appellant entered the waiting room and pulled a gun on Kurzon, and the other men entered the room behind appellant. Appellant ordered Kurzon to get on the floor. Another one of the men grabbed Kurzon and forced him to open another door, which led from the waiting room into the actual dispensary. By this time, one of the men had opened the first door into the security checkpoint and had admitted a fourth man into the area. Appellant and his companions forced Kurzon into the dispensary first, where patients and other employees of the dispensary were gathered. Appellant and his companions followed, and appellant began waiving the gun around and telling everybody to get down on the ground. Once Kurzon, the other employees, and the patients were on the ground face down, appellant’s companions went through everyone’s pockets and took cell phones and wallets. Some of the men also took containers of marijuana from behind the counter in the dispensary. The owner of the dispensary was in his office with his door closed in a meeting. Appellant and another man kicked down the office door and entered the office with a bag. One of appellant’s companions was acting as a look out and yelled that it was “time to go.” Appellant and the three other men ran out together. Security cameras recorded most of the robbery from the moment appellant and his companions were initially buzzed in by Kurzon.
Police officers arrived shortly after these events. Kurzon looked through the dispensary’s patient files to see whether he could identify appellant and his companions because the files included a photo copy of the patients’ driver’s license or other identification. Kurzon pulled appellant’s file, among others, and identified him to the officers as one of the robbers. Later on July 4, 2009, officers at the dispensary showed Kurzon and other witnesses a six-pack of photos. Kurzon identified appellant from the six-pack.
Noah Farris was one of the robbery victims who testified at trial. Farris was an employee of the Gourmet Green Room but was off duty at the time of the robbery. At the preliminary hearing, Farris testified that he had never watched the security video of the robbery, nor had he ever seen the patient files that Kurzon pulled after the robbery. At trial, the investigating officer, Alicia Elliott, testified that she was present during a conversation between Farris and the prosecutor. During this conversation, Farris told the prosecutor that he could not remember whether he saw the security video before or after the preliminary hearing, and that someone had told him to deny that he had seen the video prior to the preliminary hearing.
Farris testified at trial that he had looked at patient files after the robbery and before he had seen the six-packs. He acknowledged on cross-examination that he had testified at the preliminary hearing that he had not seen the patient files. Also on cross-examination, he testified that he had not talked to anybody about his testimony prior to the preliminary hearing, nor had he told the prosecutor that someone told him to deny having seen the security video.
PROCEDURAL BACKGROUND
On March 3, 2010, the People filed an amended information alleging seven counts of second degree robbery against appellant. The information further alleged that a principal in these offenses was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1), that each count was a violent and serious felony within the meaning of sections 667.5, subdivision (c) and 1192.7, subdivision (c), and that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). It also alleged that appellant had suffered one prior conviction of a violent or serious felony or juvenile adjudication (robbery). Appellant pled not guilty to all counts and denied all allegations. He also moved to dismiss four of the robbery counts. The court granted the motion and dismissed the four counts. The court also bifurcated trial on appellant’s prior strike for robbery.
All further references are to the Penal Code.
Appellant’s trial commenced with jury selection on March 3, 2010. The jury began deliberating on March 10, 2010. Later that day, the jury found appellant guilty on all three counts of robbery and found all allegations to be true. On April 20, 2010, the court held a trial on the prior strike and found the prior strike allegations to be true. The court also heard argument on appellant’s Romero motion and denied the motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On the first robbery count (count 6 of the amended indictment), the court sentenced appellant to the high term of five years, plus another five years for the prior strike, and another 10 years for personal use of a firearm. Appellant’s sentence on the second robbery count (count 7 of the amended indictment) was identical to that on the first count and was to run concurrently. On the third robbery count (count 9 of the amended indictment), the court sentenced appellant to one year, which was one-third of the midterm, plus one more for the prior strike, and another three years four months for personal use of a firearm (which was one-third of the firearm enhancement). The sentence on the third count was to run consecutively. The court imposed but stayed a one-year sentence on each of the three allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
Appellant was given 322 days of credit for time served. The court imposed a restitution fine of $200, a stayed parole revocation fee of $200, a $90 court security fee, and a $30 criminal conviction assessment.
DISCUSSION
We appointed counsel to represent appellant on this appeal. After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to Wende, supra, 25 Cal.3d at page 441. On January 28, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. We received appellant’s supplemental brief on April 27, 2011, in which he raised two points for the court’s consideration.
We have examined the entire record and appellant’s contentions and are satisfied that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40 Cal.4th 106, 123-124.) First, appellant contends that he had “ineffective counsel” because his counsel failed to impeach Noah Farris on (1) whether Farris had seen the surveillance video of the robbery before testifying at the preliminary hearing, and (2) whether Farris had seen the patient files. But the record clearly demonstrates that appellant’s trial counsel impeached Farris on exactly these points, through Farris’s own testimony and that of Officer Elliott. Second, appellant contends that his “appellate counsel was ineffective” because counsel “was unwilling to raise issues” for the appeal. As stated above, we have examined the record, and we are satisfied that appellant’s counsel has fully complied with her responsibilities under Wende and Kelly, and no arguable issues exist.
However, the abstract of judgment incorrectly reflects appellant’s sentence. Section three fails to list appellant’s prior juvenile conviction for robbery, found to be true by the court, and the corresponding sentence—five years on count 6, five years on count 7 to run concurrently, and two years on count 9 to run consecutively. Further, the abstract of judgment incorrectly reflects that the court stayed appellant’s 10-year sentence for personal use of a firearm on count 7. The court did not stay this sentence, but provided for it to run concurrently with the sentence on count 6. The abstract of judgment must be corrected accordingly.
DISPOSITION
The case is remanded to the trial court to correct the abstract of judgment to reflect (1) the additional sentence for the section 667.5 prior, and (2) the fact that the enhancement for personal use of a firearm pursuant to section 12022.53 was not stayed but was a concurrent sentence on count 7. The trial court shall forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: RUBIN, Acting P. J., GRIMES, J.