Opinion
E066035
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH DESPAIN, Defendant and Appellant.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1403101) OPINION APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant William Joseph Despain guilty of three counts of robbery (Pen. Code, § 211; counts 2-4). Defendant was sentenced to a total term of five years in state prison with credit of 644 days for time served, as follows: the middle term of three years on count 2, plus consecutive middle terms of one year each for counts 3 and 4. Defendant appeals from the judgment. We find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
Count 1, kidnapping to commit robbery in violation of section 209, subdivision (b)(1), was dismissed by the trial court pursuant to section 1118.1. --------
I
FACTUAL BACKGROUND
A. Count 2
On October 16, 2014, Parul Patel was working as the manager of the Main Street Gas Station in Lake Elsinore when at 12:55 p.m., a man walked into the station's store, wearing a bandana over his mouth and a black jacket. He approached the counter, where Patel was counting cigarettes, and said, " 'Open the register and give me the money.' " The suspect took a pistol out of his pocket and showed it to Patel and said, "give me the money otherwise I will kill you." Patel took the money from the register, which was about $300-$400, and placed it in a black plastic bag and gave it to the suspect. Patel also pressed a silent alarm to alert the police. The suspect fled before the police arrived, 10-15 minutes later.
Video surveillance of the incident was played to the jury at the time of trial. Patel acknowledged that he could not see the man's face or eyes, but he believed that he recognized defendant in court as the man who robbed him, noting he was white. Patel also stated he was positive that defendant had never come to the store as a regular customer and that he never heard a motorcycle in connection with the robbery. Patel agreed that the black plastic bag looked like the one at the gas station store.
B. Count 3
On the evening of October 16, 2014, Manpreet Singh was the cashier at the Main Street Gas Station in Lake Elsinore when at around 8:30 p.m., a man came into the store with a covered face, showed Singh a black gun, handed him a bag, and said, " 'Give me money.' " Singh described the face covering as a "hanky," and said the man was not wearing a hat or sunglasses, though he later said he was wearing a tan cap and a tan jacket. Singh gave the suspect single bills first while looking for the emergency button. The suspect then came around the counter towards Singh and told him to give him the money faster or he would shoot him. Singh thereafter put all the money, over $500, from the register into the bag, and the suspect fled. Singh followed after the suspect outside and saw him run towards some houses on a street or alley behind the gas station. Singh returned inside and called the police.
Video surveillance of the incident was played for the jury at the time of trial. Singh could not recognize defendant in court. He acknowledged that he had told the police the suspect was wearing a black bandana with a white design. Singh also said that he gives the same black bag to every customer that purchases an item at the gas station store.
On October 16, 2014, Aaron Hahn, a resident of Lake Elsinore, had gone to a restaurant on Main Street with his wife. After leaving the restaurant, they drove up Main Street toward the freeway. Right after stopping at a stop sign, Hahn saw the door of the Main Street Gas Station fling open, and a man run out along the north side of the building. He saw a second man run out, and said to his wife, " 'I think they just got robbed.' " Hahn pulled up alongside the second man, whom he believed was the clerk, and asked him if he was okay, and the man responded, " 'Yes.' " " 'I just got robbed.' " Still in his Jeep, Hahn tried to follow the first man down what he thought was an alley, but he then realized it was someone's backyard. Through the gate, he saw the tail light of a motorcycle light up and appear to leave the alley. He could not see the motorcycle well, but believed it to be a cruiser-type, like a Harley Davidson, rather than a sport bike.
Paul Vanderfeer, a Community Service Officer for the Riverside County Sheriff's Department, was on patrol in Lake Elsinore on the afternoon of October 16, 2014, when he noticed a black "sportster-style" motorcycle parked on the road, with a helmet on the handlebars, and no one around. The helmet did not have a face mask, but was more of a dome. Sometime after noticing the motorcycle, Officer Vanderfeer heard reports of a robbery at the nearby Main Street Gas Station over the radio dispatch. He went over to where he had seen the motorcycle and saw that it was gone. Officer Vanderfeer went online to look for photographs resembling the bike he saw, and came up with some pictures from the Sons of Anarchy. When shown pictures of the bike defendant had been riding when arrested, Officer Vanderfeer said they were different from the bikes in the pictures he had found; however, he believed the helmet he saw was similar to the helmet that was seized from defendant at the time of his arrest.
C. Count 4
On October 17, 2014, Willie Onesto was working as a driver and manager at the Papa John's in Lake Elsinore from about 4:30 until 7:00 p.m. While working, Onesto answered a phone call where the male caller asked "Whether Shawn or Kelsey was closing that night." Onesto responded that he was not sure; the caller thanked him and hung up.
Kelsey Woodruff was the closing manager of Papa John's on October 17, 2014, and was working the closing shift, along with a driver, Phillip Ramirez, up until midnight that day. Woodruff typically locks the front doors after 10:00 p.m., but people can still call in orders for deliveries. Only managers had keys to the front and back doors. The back door would remain locked during business hours, but sometimes it would be propped open to dry out the mopped floors. The delivery person would normally use the front door, because he would park in the front parking lot.
Ramirez went out on a delivery at around 11:35 p.m., and Woodruff locked the door behind him. Woodruff was behind the counter in the front when a call came in at about 11:40 p.m.; but the caller hung up right after she said, " '[t]hank you for calling Papa John's,' " and her name. About five minutes later, she heard the ringing noise that the back door makes when it opens, and turned toward the back and saw a man walking quickly toward her. The man had a bandana over his mouth, was wearing a hat and sunglasses, and had a black pistol in his right hand. The man did not say much, and Woodruff only said, " 'please.' " The man stopped about three feet away from her, backed her up to where the safes were, and looked down at them. Woodruff was taught to give them what they have, so she opened the safe for him, and gave him the contents. As the manager, she had the key to top shelf of the safe and knew the code to the bottom half. After Woodruff gave the robber $530 from the top shelf, he asked if there was more money. There was more money waiting to be counted in the office, about 20 feet away, so he followed her there, and she gave him $600-$800 from there as well. The man did not seem interested in the register. The man then gestured with his pistol for her to leave the office, and walked backwards, leading her to the walk-in refrigerator, about seven feet away, which he opened and told her to get in. She asked, " 'Why,' " and he told her, " 'Just do it.' " She walked into the walk-in refrigerator, and he closed the door behind her, from the outside.
Woodruff waited about a minute, and then called 911, knowing she might not be able to get reception in the walk-in. The call dropped after about 20 seconds, but the dispatcher called her back. The recording of the 911 call was played to the jury. When the police arrived, the dispatcher told Woodruff to leave the walk-in and go to the back door to meet them.
When Ramirez returned from his delivery, he banged on the front door and no one answered. He could not see anyone inside. He started to get concerned, remembering that he had left the back door cracked open. He started to head towards the back, but then the police showed up and stopped him, telling him there had been a robbery.
Woodruff described the robber as wearing jeans, a beige or brown jacket, large, bug-eyed, women's sunglasses which hide his eyebrows, a brown or beige baseball cap, and a bandana around his face. She was very familiar with guns and believed the gun he was carrying was real and about a .40 caliber, and it was similar to the one she was shown in court. She was also shown a tan jacket in court, and believed the tan jacket she was shown was consistent with what she remembered the man wearing. She also believed the bandana she was shown was consistent in pattern and form and in its being a dark color. She further believed the sunglasses she was shown were consistent with what the suspect wore on the night of the robbery.
Woodruff recognized defendant in court as someone who worked with her at Papa John's for about seven months as a driver. He had resigned from the job about three weeks before the robbery, and she had not seen him there since, except maybe when he picked up his paycheck. She did not recognize the robber as defendant by voice or appearance, and she did not suspect that the robber was defendant. She believed the robber's physical size was consistent with defendant's and he was white; however, she had told the police that she believed the robber was 5'8" or 5'9" and weighed about 240 pounds.
At 11:21 p.m. on October 24, 2014, Riverside County Deputy Sheriff Duane Parrish was parked in a darkened area of a strip mall which housed Target and Papa John's Pizza. He was monitoring the area due to the recent robberies and had been looking for suspects matching the description of the robber. Deputy Parrish saw defendant on a cruiser-style motorcycle, wearing a tan jacket and blue jeans, make a U-turn in front of him. Deputy Parrish pulled out and followed him, catching up to him at a red light. He then stopped directly behind defendant, turned on his overhead lights, and defendant pulled over.
Deputy Parrish made contact with defendant and told defendant he stopped him because his registration was expired, and asked what he was doing driving in the area at that time of night. Defendant responded that he could not sleep, so he decided to go for a ride and see who was working at the Papa John's where he used to work. Deputy Parrish searched the saddlebags on the motorcycle and found what appeared to be a black semiautomatic handgun. Deputy Parrish believed defendant could have been the person committing the robberies and called the investigator assigned to the case.
The investigator came out to where Deputy Parrish had stopped defendant, took photographs of the saddlebags and their contents, as well as other items he seized from defendant. Inside the saddlebags were an authentic-looking replica handgun, which does not fire real bullets, defendant's checkbook, and a baseball hat. He described the helmet he photographed as being a "brain bucket," or not a full helmet. He also described a brown jacket defendant had at the stop as being consistent with the one worn in the video of the second robbery. Inside the jacket, he found a black plastic bag and a pair of black sunglasses. At trial, defendant put the sunglasses on and faced Woodruff and the jury. Woodruff indicated she could "barely" see his eyebrows, if he lifted them.
The investigator also searched defendant's house in Lake Elsinore pursuant to a warrant. He found a pair of white Nike tennis shoes that appeared to have similar qualities as the ones the robber wore in the surveillance videos. In the master bathroom, the investigator found a dark blue and white bandana, tied into a triangle shape, which could potentially match the one worn by the robber in the surveillance videos, although each of the witnesses had described a black bandana. He did not find a tan hat, a black jacket, or a tan cash box anywhere in the house. Defendant shared his house with his wife and three sons. The investigator also seized defendant's cellular phone and determined that the phone had called Papa John's Pizza at 6:22 p.m. on October 17, 2014. That was the only call from the phone to Papa John's since August 8th.
II
DISCUSSION
Defendant was convicted of three counts of robbery and appealed. After defendant appealed, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.