Opinion
A167686
12-12-2023
THE PEOPLE, Plaintiff and Respondent, v. HUNG HYUNH CHAN, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 20-NF-007471-A
Jackson, P. J.
This is an appeal from judgment after defendant Hung Chan was convicted by a jury of one count of second degree robbery (Pen. Code, § 212.5, subd. (c)). He was sentenced to two years in prison and received 224 days of custody credits.
Unless otherwise stated, all statutory citations are to the Penal Code.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Defendant, in turn, exercised his right to file a supplemental brief in which he has raised a claim of ineffective assistance of counsel.
We have examined the entire record in accordance with People v. Wende. As discussed post, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2020, defendant was charged by information with one count of second degree robbery (§ 212.5, subd. (c)). The information gave notice that the offense qualified as a violent felony within the meaning of section 667.5, subdivision (c) and a serious felony within the meaning of section 1192.7, subdivision (c).
Trial began in February 2023. An employee of a South San Francisco mini-mart testified that on June 10, 2020, just before 8:00 a.m., during the COVID-19 pandemic, defendant pulled into the parking lot and entered the store without a face mask. Defendant briefly conversed with the employee and walked around the store before turning to leave. She asked defendant to wear a mask if he returned.
Defendant reentered the store shortly thereafter with a mask and went to the cash register, asking to purchase cigarettes. As the employee retrieved the cigarettes, defendant walked behind the counter, causing the employee to retreat toward the corner behind the register. As defendant walked closer, the employee became afraid. Defendant grabbed the cigarettes from her hand and took some nearby California Lottery Scratchers. He then said to the employee," 'Give me the money,'" and," 'Open it,'" referring to the cash register. The employee acquiesced, opening two registers because she was afraid defendant "would hurt [her] in some way." Defendant then left the store with cash from both registers, at which point the employee triggered the store's silent alarm and notified the manager of the robbery.
A police detective testified that he responded to the activation of the silent alarm on the day in question and talked briefly with the mini-mart employee. Based on the information she provided, a "be [on] the lookout" alert was issued with a description of defendant and his vehicle. Within 15 or 20 minutes, the police located defendant's vehicle and conducted a traffic stop. A search of defendant's person and vehicle revealed a bundle of cash totaling $495, a pack of cigarettes, and a "Poker Knight [sic]" California Lottery Scratcher.
The defense rested without presenting any evidence. Afterward, the jury found defendant guilty as charged.
On April 13, 2023, the trial court sentenced defendant to the lower term of two years in state prison after finding that his crime was a serious and violent felony by operation of law under sections 1192.7, subdivision (c) and 667.5, subdivision (c). The court granted defendant 224 days of credit, reflecting 195 days of actual time served and 29 days of conduct credits. Lastly, defendant was ordered to pay $300 in state restitution, a $40 court operations fee, a $30 criminal conviction assessment, a $300 parole revocation restitution fine pursuant to section 1202.45, and victim restitution as directed. This timely appeal followed.
DISCUSSION
As mentioned ante, appointed counsel has identified no issue for our review. Upon our own independent review of the entire record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744 .) Defendant, represented by competent counsel, was found guilty as charged by the jury. The trial court thereafter found that defendant's robbery conviction was a serious and violent felony as a matter of law. (§§ 212.5, subd. (c), 1192.7, subd. (c), 667.5, subd. (c).) The court then denied probation and sentenced defendant to the low term of two years in prison. The court also granted defendant 195 days of credit for actual time served and 29 days of conduct credits. This sentence was lawfully imposed. (§§ 1170, subd. (b), 2900.5, 2933.1; Cal. Rules of Court, rules 4.414, 4.421, 4.423.)
Defendant argues in supplemental briefing that his trial counsel failed to effectively advocate for him by declining to present certain mitigating facts in court, including (1) his lack of a violent history; (2) his confession to the crime and expression of empathy toward the victim at the time of his arrest; (3) the absence during the crime of any weapon, physical harm or verbal threats; and (4) the fact that he was under the influence of PCP and under a great deal of stress at the time of the crime. The record disproves defendant's argument.
In his statement to the jury, defense counsel argued, "He doesn't threaten her. He doesn't use any physical violence against her. He doesn't point a weapon at her. He doesn't pass any notes. He leaves. He is arrested later on as described and that's the case. You're going to hear it from [the victim]. You're going to see the video. You're going to get to decide for yourself." Thereafter, during cross-examination, the mini-mart employee present at the time of defendant's robbery confirmed each of these facts to defense counsel.
In addition, at the sentencing hearing, defense counsel argued, based on facts in the probation report, that (1) defendant did not have a significant criminal record, and although he had been involved in a "recent span of [criminal] events," "it was all misdemeanor conduct"; (2) while the charge was statutorily deemed violent, his conduct did not involve weapons or indicate an intent to cause bodily harm; and (3) defendant apologized for his conduct to the arresting officer and exhibited empathy for the victim.
Following this argument, defendant presented his own statement to the court, explaining that he was homeless and hungry at the time of the robbery and was sorry for his conduct. Having considered these mitigating factors, as well as the aggravating factors that defendant had a significant criminal record and history of violating probation, the court chose the lower term sentence. This ruling was within the scope of the court's broad sentencing discretion. (People v. Scott (1994) 9 Cal.4th 331, 349.)
Defendant also faults his trial attorney for failing to negotiate a better sentence, failing to cross-examine the arresting officer regarding his expressions of remorse, and failing to put him on the stand to testify. None of these is grounds for reversal. It is not for this court to second-guess the trial tactics of defendant's attorney long after the jury reached its verdict. (People v. Loza (2012) 207 Cal.App.4th 332, 351 [reviewing courts give great deference to counsel's tactical decisions and" '"' "should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" '"' "].)
Thus, having ensured defendant has received adequate and effective appellate review, we affirm the trial court's judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
We deny defendant's request in supplemental briefing to remove his appointed appellate counsel as attorney of record and appoint him new counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Simons, J. Burns, J.