Opinion
E043574
8-8-2008
THE PEOPLE, Plaintiff and Respondent, v. ERIC JEROME MORGAN, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
A jury found defendant guilty of robbery. (Pen. Code, § 211.) A jury found true the allegation that defendant personally used a firearm during the commission of the robbery. (§ 12022.53, subd. (b).) The trial court found true the allegations that defendant suffered (1) two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); (2) two prior serious felony convictions (§ 667, subd. (a)(1)); and (3) four prior convictions that resulted in prison terms (§ 667.5, subd. (b)). The court sentenced defendant to state prison for an indeterminate term of 47 years to life.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ), defendants appellate counsel asks us to examine the record to determine if there are any issues requiring further briefing. We have carefully reviewed the record on appeal, defendants supplemental letter brief filed May 27, 2008, and his request for appointment of substitute appellate counsel. We find there are no meritorious issues to be argued or briefed and affirm the judgment.
FACTS
At 5:30 a.m. on October 23, 2005, Kamal was working alone at a Valero gas station in Joshua Tree. Defendant entered the gas stations convenience store, pointed a Tec-9 assault weapon at Kamal, and told Kamal to lie on the floor. Defendant took approximately $398 in cash from the cash register. When defendant left, Kamal called 911.
The gas station had a 24-hour video surveillance system in place at the time of the robbery, which captured images of the robbery and defendants vehicle, a Jeep Cherokee. The surveillance recording showed a female, who was wearing a bright pink shirt, sitting in the passenger seat of the Jeep Cherokee. The Jeep Cherokee had all terrain tires, a missing piece of trim, chrome rims, a roof rack, and a spare tire with a chrome rim on the back door. The sergeant measured and took photographs of the tire and shoe impressions near where the vehicle had been parked.
At approximately 9:35 p.m., Sergeant Heller saw a Jeep Cherokee that had chrome rims, a roof rack, a spare tire on the back, and a missing piece of trim on the door. Sergeant Heller initiated a traffic stop of the vehicle in the area of Yucca Valley. Sergeant Heller identified defendant as the sole occupant of the vehicle. Defendant generally matched the size, stature, and build of the robber in the video surveillance footage. The tread pattern and measurement of the vehicles tires matched those at the Valero. Defendant was arrested for robbing the Valero gas station.
On October 24, 2005, Sergeant Heller executed a search warrant at defendants residence. During the search, shoes were discovered that matched the shoe impressions at the Valero gas station. Also found were clothes matching those worn by the robbery suspect.
Several days after the robbery, San Bernardino County Sheriffs Detective Porter received a telephone call from Krystle Edwards. Krystle told the detective she was the female that he was searching for in connection with the robbery. The detective instructed Krystle to come to the Sheriffs station. When Krystle arrived at the station, Detective Porter showed her a photographic lineup, which included a photograph of defendant. Krystle identified defendant as the man that robbed the gas station. Krystle was arrested for her part in the robbery. Krystle pled guilty to two felonies: (1) being an accessory after the fact; and (2) receiving stolen property.
Detective Porter listened to defendants recorded phone conversations from jail. The conversations essentially reflected, through code words and slang terms, that defendant wanted his juvenile nephew, Montgomery, to tell the police that Montgomery robbed the gas station. During the conversations, defendant discussed details of the crime, such as the movements of the robber, which he would not have known if he had not been present at the robbery. It appears from the conversations that the information was to be conveyed to Montgomery to assist with his "confession." Montgomery did not agree to testify that he committed the crime.
Defendants mother, Catherine testified that on the morning of the robbery, defendant arrived home at 3:30 a.m. Catherine recalled seeing defendant at home at 5:00 a.m. and 6:00 a.m. that morning. Catherine stated that Montgomery was not at home during the time of the robbery.
DISCUSSION
1.
DEFENDANTS COUNSELS BRIEF
After reviewing the record, defendants counsel filed an opening brief requesting that this court independently review the record pursuant to Wende, supra, 25 Cal.3d at page 441. We have independently examined the entire record and have determined that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 113-119; Wende, supra, 25 Cal.3d at p. 441.)
2.
DEFENDANTS SUPPLEMENTAL BRIEF
On May 27, 2008, defendant filed a supplemental opening brief in which he makes two contentions and one request. First, defendant contends there was insufficient evidence that he robbed the gas station. Second, defendant argues sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), dealing with prior strike convictions, are unconstitutionally vague. Third, defendant requests that this court appoint substitute appellate counsel.
A. Sufficiency of the Evidence
Defendant contends substantial evidence does not support his conviction for robbery. Specifically, defendant argues that Krystles testimony that she witnessed defendant rob the gas station conflicts with Sergeant Hellers testimony that, on the surveillance recording, a passenger could not be seen in the Jeep Cherokee. We disagree with defendants argument.
Krystle testified that she was present in the Jeep Cherokee while defendant robbed the gas station. Detective Porter testified that, on the surveillance recording, a passenger could be seen in the Jeep Cherokee wearing a bright pink shirt. The foregoing evidence provides substantial support for a finding that Krystle was inside the Jeep Cherokee during the robbery. (See People v. Halvorsen (2007) 42 Cal.4th 379, 419 [discussing substantial evidence].)
B. Sections 667 and 1170.12
Defendant contends sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), addressing prior strike convictions, are unconstitutionally vague. Defendant makes two arguments in support of this contention.
First, defendant argues that sections 667 and 1170.12 are vague because they refer only to punishing prior convictions for robbery (§ 211), as opposed to defendants prior convictions for "robbery with a firearm." We disagree with defendants argument. Defendants prior strike convictions are for robbery (§ 211), not "robbery with a firearm." Robbery (§ 211) is an enumerated serious and violent felony for purposes of section 667, subdivision (b) and section 1170.12, subdivision (b)(1). (§ 667, subd. (d)(1); § 1170.12, subd. (b)(1).) Accordingly, defendants argument is unpersuasive.
Second, defendant argues that the statutes are vague as to whether the court must determine that a conviction qualifies as a serious or violent felony at (1) the time the conviction occurred in the prior case; or (2) the time of the conviction in the current case. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Contrary to defendants assertion, the statutes are not referring to the "determination" of whether a crime constitutes a serious or violent felony; rather, the "determination" being discussed in both of these sections is the determination of whether a crime constitutes a misdemeanor or a felony, which is a necessary determination for wobbler offenses (§ 17, subd. (b)). (see People v. Queen (2006) 141 Cal.App.4th 838, 842 [discussing section 667].) Robbery is not a wobbler offense. (§§ 17, subd. (b), 213.) Accordingly, we find defendants argument unpersuasive.
C. Request for Substitute Counsel
In his supplemental appellants opening brief, defendant requests substitute counsel on appeal. Defendant has the right to effective representation by counsel on appeal. Defendants counsel has the obligation to secure an adequate record for appeal and to set forth all reasonably arguable issues. (People v. Harris (1993) 19 Cal.App.4th 709, 714.) In his supplemental appellants opening brief, defendant argues appellate counsel should have, at the very least, made the same arguments defendant made in his supplemental appellants opening brief concerning sufficiency of the evidence and vagueness of the sentencing statutes. However, our review of the entire record on appeal, does not show that any reasonably arguable issues exist. (See Wende, supra, 25 Cal.3d 436.) Therefore, there is no showing that appellate counsel missed a reasonably arguable issue, and appellant is not entitled to new counsel on appeal.
DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.
Gaut, J. --------------- Notes: All subsequent references to code sections are to the Penal Code, unless otherwise noted.