Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INFO54524, James S. Hawkins, Judge.
Michele Melden, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury found defendant guilty of robbery (Pen. Code, § 211), during which he used a knife (§ 12022, subd. (b)(1)), burglary (§ 459) and resisting a police officer (§ 148, subd. (a)(1)). He was sentenced to prison for four years.
All further statutory references are to the Penal Code unless otherwise indicated.
He appealed, and 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 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potentially arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
After concluding our independent review of the record, we affirm the judgment, while directing the trial court to amend the minutes of the sentencing hearing and the abstract of judgment to correct errors appearing therein.
FACTS
On May 15, 2006, defendant robbed at knifepoint the clerk of a convenience store he had previously frequented. On May 19, 2006, the robbery victim was at the courthouse for another case and saw defendant in the building. Law enforcement was alerted to his presence, and an attempt was made to detain him, but he fled, and was eventually stopped by the police.
DISCUSSION
Defendant allegedly engaged in two episodes of flight, i.e., when he ran from law enforcement on May 19, 2006, and later, after he had been arrested on the instant robbery, booked and bailed out of jail, when he failed to appear for his preliminary hearing, instead, moving to the state of Georgia, where he obtained employment with the Coca-Cola Company and was living with his girlfriend. He was arrested in Georgia on a fugitive warrant in December 2006 and returned for this trial. The first episode comprised one of the charges in this case and defense counsel below conceded that giving a flight instruction as to it was appropriate. Obviously, evidence of this episode was admissible at this trial. Defense counsel also concede that evidence that defendant failed to appear for the preliminary hearing and was re-arraigned later was admissible. The trial court eventually ruled that evidence that defendant was re-arraigned in December was admissible. During her cross-examination, a defense witness testified, nonresponsively, that defendant had been arrested in Georgia, thus informing the jury that he had left the jurisdiction while this case was pending against him. Considering defense counsel’s concessions, along with the testimony of the defense witness, defendant could not possibly have been prejudiced by having the jury know that he was re-arraigned in December.
Before trial began, the prosecutor asked the trial court to order defendant to shave his head so he would appear more like he did at the time of the crimes, which would assist the victim in identifying him at trial. Defense counsel said he did not oppose such an order. Therefore, defendant waived any complaint he now has about being ordered to shave his head for trial.
Defendant had an extensive record as a juvenile, which began when he was 13 years old. According to him, he had spent 6 years in the California Youth Authority (CYA). He committed these crimes 15 months after being dishonorably discharged from CYA. Although these were his first crimes as an adult, he perjured himself at trial concerning them. He told the probation officer after trial that he committed the robbery not because of need but “for fun” or to prove something. As stated before, after these crimes, he twice ran from law enforcement. Therefore, the trial court did not abuse its discretion in giving defendant the midterm, rather than the low term, for the robbery.
DISPOSITION
The burglary, for which defendant was convicted as count 2, occurred when he entered the convenience store to rob the clerk at knifepoint. The probation officer, in his report, noted that any sentence for the burglary must be stayed pursuant to section 654. In stating on the record its intended sentence at the beginning of the sentencing hearing, the court below said, “ . . . [c]ount 2 should be stayed under 654 . . . .” However, when it ultimately imposed sentence, the court said, “ . . . I’m . . . going to stick with my intended sentence. [¶] I can repeat it, I guess. . . . [c]ount 2 is two years concurrent to [c]ount 1 [the robbery] . . . .” It is clear that the trial court misspoke itself in saying that the term for the burglary was concurrent with the robbery, rather than stricken pursuant to section 654. Therefore, we direct the trial court to amend the minutes of the sentencing hearing and the abstract of judgment to show that the term for count 2, the burglary, was stayed pursuant to section 654. In all other respects, the judgment is affirmed.
We concur: McKINSTER J., RICHLI J.