Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS062884
ELIA, J.Following a jury trial, William Harris was found guilty of two counts of robbery and sentenced to 11 years in state prison. He appeals from the judgment. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 . Counsel has not referred this court to any possible, but not arguable, issues. (Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396].) We advised appellant that he could submit any argument that he wanted us to consider and he has done so. We affirm.
Background
In January 2007, appellant was charged by information with two counts of robbery committed October 28, 2006. (Pen. Code, § 211.) The information included enhancing allegations based on a prior robbery conviction. (Pen. Code, §§ 1170.12, 667.5, subd. (B), 667, subd. (a).) The prosecutor alerted the court to the fact that one of the victims of the robbery was related to the court clerk in another department. Appellant waived his preliminary examination.
In May 2007, Deputy Public Defender Steven Rease, who had made numerous appearances with appellant, filed a trial brief including motions in limine. These included a motion to bifurcate trial on the prior conviction allegations from the guilt phase of the trial, a motion to sanitize the prior conviction should appellant testify, a motion to exclude evidence that shortly after being questioned by the police, appellant, while in a jail cell, attempted suicide, and a motion to exclude evidence of appellant's status on active parole.
In June 2007, the court held a hearing to address appellant's complaints about his attorney. Appellant said that defense counsel was "acting as a surrogate prosecutor." Appellant told the court that defense counsel had refused to obtain a lineup or to request DNA testing of both the clothing and the bicycle used in the robbery. Appellant complained that counsel had not obtained the transcripts for the 911 calls. Appellant said that he and defense counsel had become embroiled in irreconcilable conflict to a degree that ineffective assistance was likely to result. Defense counsel chose not to respond to these complaints but said that he was prepared to begin trial with appellant. The trial court removed Rease. Later, Scott Erdbacher was appointed to represent appellant and the Public Defender's Office was relieved.
Erdbacher filed a trial brief in August 2007 and appellant waived jury on the enhancing allegations. Jury trial on the robbery charges began August 6, 2007. During trial, one juror informed the court that he had found out at work that he knew the brother of one of the victims. The juror was excused and replaced with an alternate juror.
Alexandra Dillon testified that she had been out the evening of October 28, 2006, and her friend Charles Christopher Renn gave her a ride home. At 3:00 a.m., she noticed a person riding a bike. When Renn opened the car door for her, she heard someone say "Break yourself." A man tried to take her purse. She did not get a good look at his face, but saw generally what he looked like. The man pulled her out of the car and threw her to the ground, causing a bruise on her face. Dillon and Renn called 911. Dillon said the police came and took her and Renn "to identify him." When Dillon first saw the person, she thought, "That's him." She identified appellant in court as the man who had robbed her.
Renn testified that as he drove Dillon home he saw an African American male wearing a sweat top and sweat pants riding a bike. After Renn stopped the car, the man said "Break yourself." From listening to rap music, Renn understood this to mean that he was about to be robbed. The man reached into Renn's pocket and removed the cash he had there. The man then went to take Dillon's purse. Renn grabbed him in a headlock. Dillon was screaming. The man took Dillon's purse and left on the bicycle. Dillon and Renn called 911. A tape and transcript of the call was admitted into evidence. Renn identified appellant's clothing as looking "exactly like what [the robber] was wearing." He identified appellant in court as the robber and testified that he had identified appellant at the field show-up as well. The day after the robbery, Renn found the bike in the bushes a few doors from Dillon's house and turned it in to the police.
Officer Raul Rosales testified that he and another officer stopped appellant around 3:23 a.m. because he matched the description they had received. Appellant had a black backpack. Appellant was wearing a lanyard. Rosales could not recall if appellant had a goatee when he was stopped.
Officer Brian Canaday testified that he met with Dillon and Renn and got a "pretty good description" with "a lot of details" from them. Appellant was detained about a mile from the scene of the robbery and both Renn and Dillon identified him. After Canaday informed appellant of his right against self-incrimination, appellant told him he had just been coming from his friend Joe's house and was walking to his girlfriend's house. He said he had been riding a bike earlier but it was at his friend Joe's house.
Officer Neil Herrier testified that he was dispatched to retrieve the bike which Renn had found in the bushes. The front wheel was bent. Eventually, the bike was sold at auction by the property department.
The defense did not present evidence. In discussing jury instructions in chambers, defense counsel said that the case was about identification and that he was not requesting any instructions on lesser included offenses.
In closing, the prosecutor argued that appellant had committed the robbery, left his bike, switched his clothes, and put his sweatshirt in the backpack. He argued, "the description, black male adult, the bicycle, the lanyard, the backpack, the clothing, the sweats, the direction of travel . . . all matched." The prosecutor added that both victims had identified appellant in the field and in court as the robber.
Defense counsel argued that the circumstances of the shocking and quick robbery would have affected the witnesses' ability to perceive and identify the robber. He stressed the inherent unreliability of the field show-up. He argued that appellant's appearance at the time he was stopped was inconsistent with having travelled the distance from the robbery to the stop in the amount of time it would have taken someone.
On August 7, 2007, the jury retired to deliberate at 3:00 p.m. At 4:15 p.m., the jury returned with a verdict convicting appellant of both counts of second degree robbery. The trial court found the enhancing allegations related to appellant's prior conviction true.
In November 2007, appellant filed a motion to dismiss the prior strike allegation. The motion recounted appellant's difficult childhood, his excellent academic performance in high school, and his exceptional performance as an athlete recruited to play college sports. Appellant went to college but then moved to Germany with his family when his father was transferred by the military. Upon his return to the United States, he became involved with drugs and some criminal matters. In opposition to the motion to dismiss the prior strike allegation, the prosecutor argued that appellant had 10 felony convictions and had been released on parole for just three months before committing the robberies. The trial court denied the motion.
The trial court sentenced appellant on count 1 to the mid-term for robbery of three years, doubled to six years under the Penal Code section 1170.12, subdivision (c)(1), enhancement, plus five years for the Penal Code section 667, subdivision (a), enhancement for a total state prison term of 11 years. The court imposed a concurrent term on count 2. The court also gave appellant credits earned and imposed various fines and fees.
Discussion
In his supplemental letter brief, appellant complains that "the courts allowed a known juror who were friends with the victims to be allowed to be on my jury" and that "The DA made it very clear in numerous court appearances that the victims were relatives of the court" causing the court to be biased against him and depriving him of a fair trial.
Appellant asserts that "the courts, by denying me a DNA test on my clothing was not fair in regards to proving my innocence." He complains about the Salinas Police Department having sold the bicycle because "a DNA test could have been done on the bike to prove my innocence." He also argues that his booking photo would have exonerated him by demonstrating inconsistencies with the description given by the victims.
Harris complains about trial counsel's waiver of his "pre-trials" and counsel's failure to move for a change of venue. He also complains about the lack of a presentation of a defense. Harris points out that no identification expert testified for the defense and that none of his family members or other witnesses were called "to come forward to help in my defense." He further argues that the field show-up was racially biased and that he was not permitted to have a line up. Harris asserts error in that neither the prosecutor nor the defense attorney pursued third party culpability evidence despite "knowledge of the actual person" who "could" have perpetrated the offense with which he was charged.
Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335 [83 S.Ct. 792].) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [104 S.Ct. 2052].) The record before us is insufficient to support Harris's claims. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Harris states that his trial counsel has been uncooperative with appellate counsel, "which is why [appellate counsel] has been unable to submit any specific issues concerning my case." Indeed, appellate counsel filed a request for extension of time to file the opening brief here noting that trial counsel had "informed me that he could not locate the file, and did not recall the case sufficiently to answer my questions. Counsel said [he] would have his investigator call me, but the investigator has not returned my phone call." Harris writes that appellate counsel has "assured me that his office will file a complaint concerning this matter." Trial counsel does have a continuing duty to the client, which includes the duty of cooperating with appellate counsel. (See State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1992-127.) This is not, however, a matter that, at this point, can be considered an arguable issue on appeal.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, and the issues raised by Harris, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Harris in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.