Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 10CF1344 James Patrick Marion, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant David Gabriel Marason was convicted of second degree robbery and burglary, stemming from a bank robbery, and sentenced to a total of three years in prison.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider as possible issues whether the trial court erred in certain evidentiary rulings.
On April 21, 2011, this court provided defendant with 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel’s Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Background
About 10:30 a.m. on April 15, 2010, defendant approached a teller window at the City of Orange branch of Chase Bank, at which Juana Pineda was working. Defendant said he wanted to make a withdrawal, and handed Pineda a money pouch. Inside the pouch was a note containing the words “gun, 20’s, 50’s, 100’s, ” and “stay calm.” Pineda placed cash totaling about $3,700 in the money pouch, and handed it back to defendant. Pineda identified defendant as the person pictured in surveillance photos of the bank robbery. Pineda later selected defendant’s photo from a six-pack photo array.
Jonathan Bell, another Chase Bank employee who had greeted defendant as he entered the bank on April 15, also identified defendant.
David Thompson, an acquaintance of defendant’s, testified that on April 15, 2010, defendant owed Thompson about $3,000. Some time after April 15, Thompson saw a newspaper article about the bank robbery, and recognized the person in the photo taken by the bank’s security camera as defendant. Thompson called the police.
On May 24, 2010, defendant was arrested. Defendant had a “defeated look” when he was arrested. During the booking process, defendant said, “I’ve been caught. I’m not saying anything without a lawyer.”
Defendant testified on his own behalf, and denied being at the Chase Bank in Orange on April 15. He also denied making the statement during the booking process, which had been attributed to him.
Defendant was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and second degree commercial burglary (id., §§ 459, 460, subd. (b)). Following a jury trial, defendant was convicted as charged.
The trial court sentenced defendant to the middle term of three years on the robbery count. The sentence on the burglary count was stayed, pursuant to Penal Code section 654. Defendant timely appealed.
Analysis of Potential Issues
Appointed counsel suggested we consider three potential issues. First, should the trial court have excluded as hearsay Thompson’s testimony that (1) he saw in a newspaper a photograph, taken by the Chase Bank security camera, purporting to be a photograph of the bank robber, (2) he recognized defendant as the person in the photograph, and (3) he gave that information to the police? Second, was Thompson’s testimony relevant? Third, did the trial court err by permitting the prosecutor to cross examine defendant regarding his involvement with gambling?
Thompson’s testimony that he recognized defendant from the bank security camera photograph in the newspaper, and that he told the police about it was not inadmissible hearsay. The testimony that Thompson recognized defendant as the person in the newspaper photograph, if it was hearsay at all, would fall within the prior identification exception. (Evid. Code, § 1238.) The testimony that Thompson alerted the police to defendant’s identity was not offered for its truth, but rather was offered to show its effect on the police, specifically to show why the police arrested defendant and placed his photo in a six-pack photo lineup shown to Pineda. (Id., § 1200, subd. (a).)
The testimony that defendant’s acquaintance recognized defendant’s photo and alerted the police to his identity was clearly relevant to determine the identity of the bank robber. (Evid. Code, §§ 210, 350.)
There was no error in the prosecutor’s questions to defendant regarding his gambling. Defendant’s counsel objected to the prosecutor’s questions as irrelevant. Defendant’s testimony implied he had received an inheritance from his mother, which would tend to show he was not suffering from money problems, as Thompson had testified. Defendant’s gambling debts were a possible motive for the robbery and therefore relevant to the case. The trial court did not err in overruling the objection.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.