Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09HF1594 Frank F. Fasel, Judge.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury found defendant Terrance Darcel Knight guilty of second degree robbery. The trial court found defendant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to the upper term of five years for the robbery offense, and three consecutive one year terms for each prior prison term served.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested we consider certain issues addressed post. This court provided defendant 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel’s Wende/Anders brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Background
In October 2009, defendant was charged in an information with one count of second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c). The information also alleged defendant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
At trial, Letoya Brady testified that on September 6, 2009 at 10:00 p.m., she was walking through a back alley with her friend Gladys Perez; Brady was carrying her purse on her right shoulder. Brady saw defendant and another man walking in front of them in the alley. Defendant turned around and grabbed Brady’s purse, which contained her mother’s Zune MP4 player and some personal items.
Brady held on to her purse; she and defendant tugged the purse back and forth. Brady repeatedly told defendant, “I don’t have anything” and defendant said, “shut up, bitch.” The strap of the purse broke, “got ripped off [Brady’s] arm, ” and “got pulled through [her] hand, ” causing her hand to become blistered and her arm to become bruised. Defendant ran off with the purse and sped away in a white car. Cynthia Miller witnessed the robbery while sitting in her van.
Perez called 911 and Officer Darren Wood of the Costa Mesa Police Department responded to the call and took Brady’s, Perez’s and Miller’s statements. About one hour and 20 minutes later, Wood drove to a nearby restaurant for dinner where he observed defendant, who matched the description provided by the witnesses, sitting on the patio. Defendant consented to a search and Wood found defendant was in possession of a Zune MP4 player. Brady and Miller were contacted by police and each was transported to the restaurant where they independently identified defendant. Brady also identified the Zune MP4 player found in defendant’s possession as hers.
The jury found defendant guilty of the robbery offense as charged and the trial court found the prior prison term enhancement allegations true. The court imposed a total prison sentence of eight years, consisting of a five year upper term sentence for the robbery offense and three consecutive one year terms for the prior prison term enhancements. Defendant appealed.
Analysis of Potential Issues
In the Wende/Anders brief, appointed counsel suggests we consider whether (1) the instruction given to the jury on possession of stolen property (CALCRIM No. 376) lowered the prosecution’s burden of proof; (2) the in field witness identification that occurred shortly after the commission of the offense was impermissibly suggestive; (3) the trial court’s failure to instruct the jurors that they were not permitted to accept consideration in exchange for information prior to or within 90 days of discharge constituted error; and (4) it was improper for the trial court to impose the upper term for the robbery offense and three consecutive one year terms for the prior prison term enhancements. As we explain post, none of the possible issues raised by counsel constitutes arguable issues on appeal.
First, the jury was instructed with CALCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
CALCRIM No. 376 informs the jury that each element of the offense must be proved beyond a reasonable doubt and also “accurately describes the law regarding mental state inferences to be drawn from possession of stolen property.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577.) CALCRIM No. 376 did not lower the prosecution’s burden of proof and “did not infringe on [defendant]’s constitutional rights.” (People v. O’Dell, supra, at p. 1577.)
Second, “the law favors field identification measures when in close proximity in time and place to the scene of the crime.” (In re Richard W. (1979) 91 Cal.App.3d 960, 970.) In In re Richard W., the appellant argued, “the in field identification was too suggestive in that it exhibited only the [appellant] and his companion handcuffed inside a police car with officers standing around.” (Id. at p. 969.) The appellate court rejected the defendant’s argument, stating: “Appellant overlooks the fact that the law favors field identification measures when in close proximity in time and place to the scene of the crime, with the rationale for the rule being stated: ‘The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in the field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in the field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.’” [Citations.] Other cases have similarly held that in-field identifications when the suspect was in the back of a patrol car or handcuffed are admissible. [Citations.] Where the defendant claims the pretrial identification is unnecessarily suggestive, he must show it gave rise to a very substantial likelihood of misidentification.” (Id. at p. 970.)
Here, the in field identification of defendant occurred within close proximity of the robbery. Defendant was apprehended at a local restaurant about an hour and 20 minutes after the robbery. About 30 to 45 minutes after Brady finished speaking with Wood about the robbery, she received a call from a police officer informing her the police had a suspect in custody and wanted her to determine whether he was the individual who robbed her. Brady and Miller were transported to the restaurant where defendant had been apprehended and they each separately identified defendant as the person who grabbed Brady’s purse.
The record does not show that any circumstances of the witnesses’ identification of defendant gave rise to “a very substantial likelihood of misidentification.” (In re Richard W., supra, 91 Cal.App.3d at p. 970.) To the contrary, the identification was supported by evidence that defendant fled the scene of the robbery after getting into a white car and was shortly thereafter seen by a restaurant employee arriving in a white car at the restaurant where he was apprehended. Also, Brady identified defendant before she was informed that he was found in possession of an MP4 player which she identified as hers. Defendant was not wearing handcuffs when Brady identified him. Although defendant was placed in handcuffs before Miller identified him, on this record that fact did not give rise to a very substantial likelihood of misidentification. We find no error.
Third, the record shows the trial court did not instruct the jury with CALCRIM No. 101 which admonishes the jury, pursuant to Penal Code section 1122, subdivision (b), to wait at least 90 days after discharge of the jury before negotiating or agreeing to accept any payment for information about the case. The clerk’s transcript, however, identifies CALCRIM No. 3590 as an instruction that was given to the jury. CALCRIM No. 3590 provides in pertinent part: “I remind you that under California law, you must wait at least 90 days before negotiating or agreeing to accept any payment for information about the case.” The reporter’s transcript, however, does not contain corresponding language. Assuming the jury was not instructed to refrain from accepting any consideration for supplying information concerning the case, the record is devoid of even the suggestion that any juror violated this admonition and thus defendant has not been prejudiced in any way. (People v. Carter (2003) 30 Cal.4th 1166, 1200 [the defendant required to show failure to admonish in accordance with Penal Code section 1122 was prejudicial].)
Finally, the trial court had discretion to impose the upper term sentence for the robbery offense. (Pen. Code, § 1170, subd. (b).) Also, Penal Code section 667.5, subdivision (b) provides that “in addition and consecutive to any other prison terms therefor, the court shall impose a one year term for each prior separate prison term served for any felony.” Substantial evidence supported the trial court’s finding the prior prison term enhancement allegations were true. We find no error.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.