Opinion
2d Crim. No. B204599
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL L. BRANCH, Defendant and Appellant.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
Michael Branch appeals a judgment after conviction by jury of assault with a deadly weapon, and attempted second degree robbery, with findings that he inflicted great bodily injury and personally used a deadly and dangerous weapon. (Pen. Code, §§ 245, subd. (a)(1), 664, 211, 12022.7, subd. (a), 12022, subd. (b)(1).) Branch admitted suffering two prior serious felony strike convictions and serving a prior prison term, alleged for sentence enhancement and recidivist sentencing. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) We appointed counsel to represent him in this appeal. After counsels examination of the record, she filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.)
On September 11, 2008, we advised Branch that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him contending that the witnesses mistakenly identified him. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Branchs contention.
FACTS AND PROCEDURAL HISTORY
On June 11, 2007, Branch entered an office in a commercial building on Ocean Boulevard in Long Beach, and requested the restroom key. A female employee escorted Branch to the restroom and he opened the door with the key.
Daniel Sitek entered the restroom and saw Branch. Branch walked behind Sitek, placed a knife to this throat, and demanded money. Sitek pushed Branch back and stated he had none. Branch then swiped Sitek twice with the knife, cutting Siteks back and finger.
Someone heard noises and knocked on the restroom door. Branch threatened Sitek to remain quiet. Branch informed the person at the door that there were no problems. Branch then fled the building.
Sitek received emergency medical assistance. His back wound required eight stitches.
Approximately two weeks later, police officers arrested Branch in Los Angeles. At the time, Branch wore Middle-Eastern style garments, including a head covering. A search incident to Branchs arrest yielded two knives.
At trial, the female employee and the victim identified Branch. The victim also identified a photograph of one of the knives as similar to the knife that Branch used in the restroom. The female employee testified that Branch wore a long-sleeved black shirt at the time of the crimes. When arrested, Branch wore a long-sleeved white shirt.
By information, the prosecutor charged Branch with assault with a deadly weapon, attempted second degree robbery, personal infliction of great bodily injury, and personal use of a deadly or dangerous weapon. (§§ 245, subd. (a)(1), 664, 211, 12022.7, subd. (a), 12022, subd. (b)(1).) The prosecutor also alleged that Branch suffered two prior serious felony strike convictions and served a prior prison term. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
Branch sought to represent himself at trial. The trial court advised him properly and then found that he knowingly and intelligently waived his right to counsel. A jury trial followed. A police officer testified and described Branchs arrest. The female employee and the assault and robbery victim also testified.
The jury convicted Branch of the two counts and found the enhancements true. In a separate proceeding, Branch admitted suffering the two prior serious felony strike convictions and serving the prior prison term. The trial court sentenced him to 34 years to life for count 2, the attempted robbery, consisting of 25 years to life as a "third strike" sentence, plus five years for suffering a prior serious felony conviction, three years for inflicting great bodily injury, and one year for personal use of a deadly or dangerous weapon. The court sentenced Branch to 33 years to life for count 1, assault with a deadly weapon, and stayed sentence on that count pursuant to section 654. The trial court struck the prior prison term allegation of section 667.5, subdivision (b). The court awarded Branch presentence credit of 165 days, including 14 days of conduct credit. It also imposed a $200 restitution fine and a $200 parole revocation restitution fine. (§§ 1202.4, subd. (b), 1202.45.)
DISCUSSION
In assessing the sufficiency of evidence to support a judgment, we review the evidence most favorably to the judgment to determine whether reasonable and credible evidence exists from which a reasonable trier of fact could have determined guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not redetermine the weight of the evidence or the credibility of witnesses. (Ibid.) Nor do we substitute our reasonable inferences drawn from the evidence for those drawn by the trier of fact. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Sufficient evidence supports the convictions. The weakness of identification testimony is a matter of the weight of the evidence and an issue to be determined by the trier of fact. (In re Corey (1964) 230 Cal.App.2d 813, 826.) "[T]o entitle a reviewing court to set aside a finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all." (Id. at p. 825.) The female employee and the victim identified Branch at trial.
We have reviewed the entire record and are satisfied that Branchs attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d 436, 441.)
The abstract of judgment contains clerical errors, however. It erroneously states that the court imposed a one-year term for the service of a prior prison term. (§ 667.5, subd. (b).) It also does not state that the court imposed a one-year term for the personal use of a deadly or dangerous weapon concerning count 2. The trial court shall amend the abstract of judgment to correct these errors, and forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.
We concur:
COFFEE, J.
PERREN, J. --------------- Notes: All further statutory references are to the Penal Code.