Opinion
NOT TO BE PUBLISHED
Lake County S.Ct. No. CR917611
Bruiniers, J.
Appellant was convicted by jury of the robbery of Robert Warrington (Pen. Code, § 211). The jury further found that appellant personally used a knife in the commission of that offense (§ 12022, subd. (b)(1)). He was sentenced to the midterm of three years for the robbery, with a consecutive one-year enhancement for use of the knife.
All further code references are to the Penal Code unless otherwise indicated.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that appellant has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
People v. Wende (1979) 25 Cal.3d 436.
We find no arguable issues and therefore affirm.
Background
Appellant waived his right to a preliminary hearing on the charges against him. Trial of appellant’s case commenced before a jury on April 21, 2009. We review the trial evidence in the light most favorable to the verdict of the jury, and presume the existence of every fact the trier could reasonable deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277.)
On December 1, 2008, appellant became involved in a discussion between Robert Warrington and Carlos Cruz. Warrington had gone with appellant to what appellant claimed was his home to discuss removal of a tree overhanging the house. Cruz, and another man Warrington did not recognize, approached Warrington and appellant as Warrington was preparing to leave.
Darryl Wienke testified that the house where the incident occurred was his, and that appellant had been getting estimates for him on removal of an overhanging tree.
The conversation concerned money owed to Cruz for flooring work done by Cruz on an office renovation project on which Warrington was the contractor. Appellant became “a little irate, ” raising his voice, becoming aggressive in his demeanor and with an angry look on his face. He was standing about an arm’s length away from Warrington. Warrington noticed that appellant was holding a stainless steel or chrome folding blade knife at his side. Appellant said “ ‘You owe this guy money.... What are you going to do for him?... Why don’t you just do something for him here and now, like give him the money out of your wallet.’ ” Warrington took $36 from his wallet and gave it to Cruz, showing both appellant and Cruz that his wallet was then empty. Warrington testified that he was shocked at the sight of the knife and gave the money to Cruz because of fear for his safety. He thought appellant might have been drinking, and that it was an “unpredictable situation.” Appellant said “ ‘This isn’t over yet[, w]e’ll meet again, ’ ” and walked away with Cruz “kind of laughing arm in arm.”
Warrington did not immediately report the incident to police because he feared retaliation. He made a report two or three days later, and identified appellant from a photo lineup about a week later. He identified a knife that police had confiscated during a probation search of appellant’s residence.
The defense sought to introduce evidence of federal tax liens filed against Warrington as impeachment. The court found the evidence to have limited probative value and declined to admit it.
Cruz testified that Warrington was a good friend and that he had known appellant for about five or six months. Appellant was aware that Warrington owed Cruz money. Cruz had asked appellant to keep an eye out for Warrington’s truck, because Cruz needed the license plate number for “paperwork.” Cruz had come to the scene that day after a neighbor, “Robert, ” came to his home and told him that Warrington’s truck was down the street. “Robert” received a telephone call from appellant asking Cruz to “come down and talk to the guy.” After Cruz arrived, “words got exchanged” between appellant and Warrington. Appellant said “ ‘Well, where I come from, when a man works for you, you pay him.’ ” Appellant asked Warrington if he had any money on him, and when Warrington said he did, appellant said “ ‘Well, don’t you think you should give it to Carlos? He needs it for his son this weekend.’ ” Cruz described appellant as being in “like a threatening position, like he wanted to maybe punch him or something is what I seen.” Cruz could not see appellant’s hand and did not see a knife. After Warrington gave him the money, Cruz walked away.
Robert Sherburne testified that on December 1, 2008, he had driven with appellant to a Tower Mart where they saw Warrington’s black pickup truck that Cruz had described to them. Appellant told Sherburne to “go get Carlos” and he saw appellant leave with Warrington. Sherburne went to Cruz’s residence and told him that “his boss was down the street.” Sherburne was present when appellant asked Warrington about the money owed to Carlos and saw Warrington hand $36 to Cruz. Sherburne initially testified that appellant used a “normal tone of voice” in talking to Warrington, and said that he could not see appellant’s hands. Sherburne later admitted that he had told investigating officers that appellant had been holding a knife, and that appellant and Warrington were yelling at each other. Sherburne then acknowledged that appellant and Warrington were in fact yelling at each other at the time of the incident. Sherburne testified that a few days after the incident appellant had told him that appellant had been holding a carpet knife in his hand when he was talking to “Carlos’s boss.” In a recorded interview, Sherburne told Lake County Sheriff’s Sergeant Brian Martin that appellant had a knife “in his hand, unfolded” and described how appellant had been standing while holding the knife.
Although the record is not entirely clear, it appears that Sherburne was developmentally disabled, with a live-in care provider. The court gave jury instruction CALCRIM No. 331 on evaluation of the testimony of a developmentally disabled person.
Appellant testified, admitting the discussion with Warrington, but denying that he had displayed a knife. Appellant also denied ownership of the knife found at his residence. Appellant denied that anyone had been yelling during the conversation with Warrington, denied threatening Warrington, and denied that he had been drinking. Appellant was impeached with a 2007 felony conviction for credit card fraud, and with a 2004 conviction for domestic violence. Martin testified that appellant “eventually” acknowledged that the knife found at the residence was his.
The jury was instructed on the elements of robbery, and on the lesser included offenses of grand theft from the person (§ 487) and petty theft (§ 484). (CALCRIM Nos. 1600, 1800–1801.) Over defense objection, the court gave CALCRIM No. 373, advising the jury that “another person may have been involved in the commission of the crime charged against the defendant” and that the jurors “must not speculate about whether that person has been or will be prosecuted.” The court stated that it was giving the instruction “because there is sufficient evidence in the record where an inference could be drawn by the jury that [appellant] and Mr. Cruz were acting in concert.” The court said that it also intended to give the accomplice instruction (CALCRIM No. 334) at the prosecution’s request, but subsequently decided that it was not appropriate to give that instruction on the basis that “although there’s some inference that the jury could draw that Carlos Cruz was in on the deal, that is that they were going to try to extort money from the victim, his statements were not sufficiently incriminating and [appellant’s] statement that was played to the jury seemed to indicate to the court that [CALCRIM No.] 334 should not be given.” The defense requested an instruction on voluntary intoxication. The court found the evidence insufficient to warrant the instruction.
The defense also asked for an instruction on late discovery from the prosecution, which the court refused to give. This request was apparently based on a second statement of witness Sherburne taken by Martin during the course of the trial, but which had not been provided to the defense until over a day after its recording. Nothing in the record indicates that this statement was used for any purpose at trial, and the court indicated that nothing probative came from the interview.
On April 28, 2009, a jury convicted appellant of robbery (§ 211) and found true the allegation that he personally used a knife in the commission of the offense (§ 12022, subd. (b)(1)). On June 1, 2009, appellant was sentenced to the midterm of three years in state prison on the robbery conviction, with an additional consecutive term of one year for the personal use of a knife. The court also imposed $800 restitution fines (§§ 1202.4, subd. (b); 1202.45), a $38 fine, including penalty assessment (§ 1202.5), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $20 court security fee (§ 1465.8). He received actual custody credit of 171 days (§ 2900.5) and limited conduct credit of 25 days (15 percent of actual days) pursuant to section 2933.1.
Appellant filed a timely notice of appeal on July 7, 2009.
Discussion
Sufficiency of the Evidence
The evidence was sufficient to establish each element of the offense charged against appellant beyond a reasonable doubt. “In resolving sufficiency of the evidence claims, ‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Gomez (2008) 43 Cal.4th 249, 265.) It is the jury’s role “ ‘ “to determine the credibility of... witness[es] and the truth or falsity of the facts upon which a determination depends....” ’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 303, last ellipsis in original.) It does not matter that the evidence might also support a contrary finding. (See People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Jury Instructions
The jury was properly instructed on the elements of the charged robbery offense and on the lesser included offenses. Only minimal evidence was presented of any alcohol use by appellant at the time of the offense and no substantial evidence supported the requested defense instruction that voluntary intoxication precluded him from forming the specific intent to rob. (People v. Roldan (2005) 35 Cal.4th 646, 716, disapproved on a different issue in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) No arguable issue is presented.
Appellant’s counsel suggests the court’s failure to instruct the jury on accomplice testimony (CALCRIM No. 334) is an issue in the record “that might arguably support the appeal.” (Anders v. California (1967) 386 U.S. 738, 744.) The prosecution requested that the court give both CALCRIM Nos. 373 and 334. The defense objected. The court stated that it was giving CALCRIM No. 373 “because there is sufficient evidence in the record where an inference could be drawn by the jury that [appellant] and Mr. Cruz were acting in concert.” The court ultimately decided that it was not appropriate to give the accomplice instruction, stating that “although there’s some inference that the jury could draw that Carlos Cruz was in on the deal, that is that they were going to try to extort money from the victim, his statements were not sufficiently incriminating and [appellant’s] statement that was played to the jury seemed to indicate to the Court that [CALCRIM No.] 334 should not be given.” There is a sua sponte duty to instruct on the principles governing the law of accomplices, including the need for corroboration, when there is sufficient evidence that a witness is an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.)
It was the prosecution that argued that the robbery was a “setup” and that Cruz was minimizing his own role in the events. In declining to give the instruction, the court was apparently concerned that the instruction could be detrimental to the defense given the equivocal nature of Cruz’s testimony. Even assuming the instruction should have been given over defendant’s objections, a “failure to instruct on accomplice liability... is harmless if there is ‘sufficient corroborating evidence in the record.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1024.) Our review of the record reflects more than sufficient corroboration of Cruz testimony. Warrington’s testimony alone supports the conviction. No arguably meritorious issue is therefore presented.
Appellant’s Sentence was within the Sound Discretion of the Trial Court.
Appellant was denied probation and sentenced to a four-year term in state prison. Appellant was on felony probation at the time of the present offense. He was statutorily ineligible for probation having committed a violent felony while on felony probation. (§ 1203, subd. (k).) The finding of personal use of a knife would have rendered him otherwise eligible for probation only in an unusual case. (§ 1203, subd. (e)(2).) The court did not find this to be an unusual case. The court considered the relevant factors in denying probation. (See Cal. Rules of Court, rules 4.413, 4.414.) “Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court....” (§ 1170, subd. (b); see Cal. Rules of Court, rule 4.420.) No abuse of discretion is shown and no arguable issue is presented.
Custody credits were properly determined and awarded. Fines and penalties were statutorily mandated.
The issue of retroactive application of recent amendments to section 4019, providing for additional presentence custody credits, is pending before this court and others. (See People v. Rodriguez (Mar. 30, 2010, F057533) ___ Cal.App.4th ___, [2010 WL 1212450] [finding the amendment not to be retroactive]; People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___, [2010 WL 924421] [reaching a contrary conclusion].) Appellant’s conviction for a violent felony (§ 2933.1) would in any event bar him from receiving additional credit under the amended statute.
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.