Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. PA059158, Rick Brown, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant Rebecca Cedeno.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Pascual Garcia.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Pascual Garcia (Garcia) and Rebecca Cedeno (Cedeno) appeal from the judgments entered following a jury trial which resulted in their convictions of second degree robbery (Pen. Code, § 211) and Cedeno’s admission she had previously served a prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Garcia to four years, four months in prison and Cedeno to four years in prison. As to Garcia, we remand the matter to the trial court for correction of the abstract of judgment. In all other respects, we affirm the judgments.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
At approximately 10:45 p.m. on May 16, 2007, Daniel Beltran (Beltran) was walking his dog on Memory Park in North Hills when he realized that someone was walking behind him. Beltran then saw three men come out from an apartment building and attack the man behind him. After “jump[ing]” and hitting the man, the three men called out to Beltran and ordered him to “ ‘stop.’ ” Beltran, however, kept walking.
The three men ran after Beltran. Two of the men stopped just behind Beltran and one of the men, Garcia, walked around and stood in front of Beltran. When Garcia said to Beltran, “ ‘Give me whatever you have[,]’ ” Beltran responded, “ ‘I don’t have anything.’ ” Garcia grabbed Beltran by the shirt and, assisted by the two men standing behind Beltran, began going through Beltran’s pockets. One of the men standing behind Beltran then hit Beltran on the head and the three men started beating him and attempting to “throw” him to the ground. As Beltran fought back, Garcia grabbed Beltran’s dog and began to walk away with it.
Beltran was able to break free of the men and began to run away. At that point, a woman, Cedeno, appeared. She called out to the three men and said, “ ‘Don’t let him go. Don’t let him go.’ [¶] . . . ‘Take whatever he has.’ ”
After the men took from Beltran a CD player, a $100 bill and his keys, the two men who had been standing behind Beltran left the area. Garcia and Cedeno began to walk away. Garcia dropped the dog’s leash, letting him go.
Only seconds later, Beltran looked up and saw a police car. He was able to get the officers’ attention and they stopped. Beltran told the officers what had happened and pointed out Garcia and Cedeno.
At approximately 10:45 p.m. on May 16, 2007, Los Angeles Police Officer Matthew Jacobik (Jacobik) and his partner, Officer Kent Rodriguez (Rodriguez), were on patrol in a marked police car on Memory Park in the San Fernando Valley. As he was driving, Jacobik observed Beltran, standing in the middle of the street, waiving to him. Jacobik drove toward Beltran and got out of the patrol car. Beltran, who appeared to be upset, pointed toward two individuals, Garcia and Cedeno, and stated, “ ‘They just robbed me.’ ” Jacobik and his partner both ordered Garcia and Cedeno, who were approximately 15 feet from the officers and walking away, to stop. Jacobik then approached Cedeno and placed her in handcuffs. Rodriguez, handcuffed Garcia. Jacobik noticed two other individuals in the area, however they were much farther away and the officer was unable to apprehend them.
Jacobik interviewed Beltran, who was “scraped up,” and looked as though he had been “in a fight.” Beltran described what had happened and was “very specific in terms of . . . what [Garcia and Cedeno] did during [the] incident.” Toward the end of their conversation, Beltran looked up and said, “ ‘Oh, there’s my dog.’ ” The dog appeared to be friendly and Jacobik was able to get close to him.
Jacobik retrieved a portable CD player and a set of keys from the middle of the street. The CD player was not checked for fingerprints. The officer explained that, if there are “suspects at the scene, and the story’s pretty clear and we’re not looking for anybody,” prints are not usually taken. The officers did not recover Beltran’s $100 bill.
Rodriguez testified he first saw Beltran as he was getting up off of the ground. He was with his dog and “ ‘had him by the leash.’ ” As he stood up, Beltran “flagged . . . down [the officers].”
When Rodriguez first approached Beltran, he noted that Beltran was “in distress.” Beltran told the officer that he had “been jumped,” then pointed toward Garcia and Cedeno, who were approximately 30 feet away, and two men who were “walking briskly down the street” approximately 100 feet away. Rodriguez and Jacobik were able to detain Garcia and Cedeno and, after getting more information from Beltran, Rodriguez and Jacobik placed Cedeno and Garcia under arrest.
When Rodriguez first saw the CD player and Beltran’s keys, they were in the street approximately 30 feet from where Garcia and Cedeno were apprehended. Rodriguez explained that neither the CD player nor the keys were fingerprinted because the victim, Beltran, and two of the perpetrators, Cedeno and Garcia, who Beltran “positively identified as the people that actually committed the crime,” were all present at the scene.
b. Defense evidence.
Twenty-year-old Garcia testified that, at the time of trial, he was on probation for a “drug conviction.” In October 2006, he had been convicted of “selling, transport[ing], or offering to sell cocaine.”
Garcia lives with his mother in a house at the intersection of Sepulveda and Chase streets, approximately five blocks from Memory Park. On May16, 2007, Garcia and his girlfriend, Cedeno, were walking down Memory Park from the motel where Cedeno was staying toward Garcia’s mother’s house. Garcia was going to the house to pick up some clothes. On his way back to the motel, Garcia saw Beltran arguing with two men “about some drugs.” As Garcia passed by, Beltran began “cussing” at Garcia, asked Garcia what he was staring at, then “[took] off on” Garcia. Beltran hit Garcia in the chest and Garcia hit Beltran back. The two men fought until Garcia was able to walk away. Garcia did not see where the two men Beltran had been arguing with went after he and Beltran began to fight.
Cedeno was with Garcia throughout the incident. She never told Garcia to “ ‘take [Beltran’s] money’ ” or to “ ‘go through his pockets.’ ”
When he was approximately 20 feet from Beltran, Garcia was stopped by a police officer. The officer handcuffed Garcia and asked him if he had any of Beltran’s property. Garcia replied that he did not. Garcia stated he had not gone through Beltran’s pockets and had not robbed Beltran.
2. Procedural history.
Following a preliminary hearing, on June 28, 2007, Garcia and Cedeno were charged by information with second degree robbery in violation of section 211. It was further alleged as to Cedeno that she had served a prior prison term within the meaning of section 667.5, subdivision (b).
At proceedings held on September 7, 2007, Cedeno’s motion to bifurcate the trial on her prior prison term from that on the substantive offense was granted.
At the end of the People’s presentation of evidence, Cedeno and Garcia made motions to dismiss the cases against them pursuant to section 1118.1. The trial court denied the motions.
During a discussion regarding whether Garcia would testify, Garcia’s counsel sought to sanitize his prior conviction for the sale or transportation of cocaine in violation of Health and Safety Code, section 11352, subdivision (a). The trial court determined that, should Garcia testify, he could be impeached with the prior felony conviction and that the jury could be informed that Garcia “was convicted of [the] felony of . . . selling, transporting, or offering to [sell] cocaine.” The trial court concluded “[t]hat would be the fairest thing.”
On September 13, 2007, while the jury was deliberating, Cedeno decided she would admit having served the alleged prior prison term. Cedeno waived her right to a jury or court trial, her right to confront and cross-examine the witnesses against her, her right to present a defense and her privilege against self-incrimination and admitted having suffered convictions for felonies in 2003 (a violation of Health and Safety Code section 11350, possession of a controlled substance), 2004 (a violation of section 530, falsely impersonating another) and 2005 (a violation of Health and Safety Code section 11352, the sale or transportation of a controlled substance), and that she served concurrent prison terms for the offenses. Based on the certified documents presented, Cedeno’s counsel stipulated there was a factual basis for the admissions. The trial court found Cedeno’s admissions were “freely, knowingly, intelligently, and understandingly” made.
That same day, September 13, the jury found Garcia and Cedeno guilty of second degree robbery in violation of section 211.
At sentencing, held on October 2, 2007, the trial court found Garcia to be in violation of his probation granted following his conviction of the sale or transportation of a controlled substance. The court “revoked and terminated” probation, then sentenced Garcia to the middle term of three years in prison for his conviction of robbery and a consecutive term of one-third the middle term, or 16 months, for the probation violation, for a total term of four years, four months in state prison. Garcia was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 stayed parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)) and $200 in restitution to Beltran (§ 1202.4, subd. (f)). With regard to restitution to Beltran, liability was ordered to be “joint and several” with restitution ordered to be paid by Cedeno. For the present case, Garcia was awarded a total of 161 days of presentence custody credit, consisting of 140 days actually served and 21 days of good time/work time. For his probation violation, the trial court awarded Garcia presentence custody credit for 180 days, consisting of 120 days actually served and 60 days of good time/work time. In total, Garcia received presentence custody credit for 260 days actually served and 81 days of good time/work time, or 341 days.
The trial court sentenced Cedeno to the middle term of three years in prison for her conviction of second degree robbery and a consecutive term of one year for her admission of a prior prison term, for a total term of four years in state prison. Like Garcia, Cedeno was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)) and “joint and several” restitution to Beltran in the amount of $200 (§ 1202.4, subd. (f)). Cedeno was awarded presentence custody credit for 140 days actually served and 21 days of good time/work time, for a total of 161 days.
Cedeno filed a timely notice of appeal on October 2, 2007.
Garcia filed a timely notice of appeal on October 17, 2007.
This court appointed counsel to represent Garcia on appeal on January 9, 2008, and appointed counsel to represent Cedeno on appeal on January 14, 2008.
CONTENTIONS
After examination of the record, appointed appellate counsel filed opening briefs which raised no issues and requested this court to conduct an independent review of the record.
By notices dated March 3, 2008, the clerk of this court advised Garcia and Cedeno to submit within 30 days any contentions, grounds of appeal or arguments they wished this court to consider. No responses have been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Cedeno’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.) However, as to Garcia, we note the abstract of judgment does not accurately reflect his sentence and presentence custody credits. The abstract fails to reflect the 16-month consecutive sentence imposed for Garcia’s probation violation; it shows only the three-year sentence imposed for his conviction of second degree robbery. In addition, the abstract of judgment indicates Garcia was awarded 161 days of presentence custody credit consisting of 140 days actually served and 21 days of conduct credit. The trial court awarded Garcia presentence custody credit for 341 days, consisting of 260 days actually served and 81 days of conduct credit. These clerical errors must be corrected to correspond to the trial court’s oral pronouncement of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
DISPOSITION
Garcia’s case is remanded to the trial court for correction of the abstract of judgment to reflect the sentence imposed and the presentence custody credits awarded: the three-year sentence for Garcia’s conviction of second degree robbery and a consecutive term of 16 months for his violation of probation previously granted in another matter, and a total of 341 days of presentence custody credit consisting of 260 days actually served and 81 days of conduct credit. The trial court is further directed to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgments are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.