Opinion
NOT TO BE PUBLISHED
Contra Costa County, No. 081166-1
NEEDHAM, J.
Raywood Mitchell appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple crimes. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
An information alleged that Mitchell committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), felony assault against the robbery victim (§ 245, subd. (a)(1)), and criminal threats against a police officer (§ 422). As to the robbery count, it was alleged that he personally used a knife (§ 12022, subd. (b)(1)). The information further alleged that Mitchell previously served a prison term within five years of committing the offense (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
The record also indicates that Mitchell had numerous prior convictions and was on probation and parole at the time of the offense.
A. Trombetta Hearing
Mitchell filed a motion to dismiss or for sanctions pursuant to California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51. The motion was based on the police department’s failure to preserve sequentially numbered one dollar bills that purportedly belonged to the robbery victim and were found on Mitchell, but which Mitchell denied possessing. The court heard the motion outside the presence of the jury.
At the Trombetta hearing, Concord Police Officer Lawson testified that the robbery victim, Kimberly Fellenstein, indicated the robber had taken sequentially-numbered one dollar bills. Lawson checked the money that was seized from Mitchell’s person after his arrest and found 11 one-dollar bills with sequential serial numbers. Officer Lawson instructed Officer Gordon to log the money into evidence.
Officer Gordon received the sequentially numbered dollar bills from Sergeant Brady and logged the money into the evidence room at the Concord Police Department. However, she did not indicate that the bills themselves were evidence. At the time, she was unaware that currency not specifically marked as evidence is deposited into an account, and the actual bills are not kept on hand. This was the first time Gordon had ever submitted money to be logged as evidence.
Susette Regis, who works in the Concord Police Department property and evidence room, confirmed that money is marked as evidence or as seized money. If an officer does not mark the money as evidence, it stays in the evidence department a week and eventually ends up in the finance department. The money from this case was not marked as evidence, Regis received no directions as to what to do with the money, and the bills were no longer available.
Finding that the sequentially numbered bills had no exculpatory value and the police had not acted in bad faith, the court denied the motion.
B. Evidence at Trial
Victim Fellenstein testified that a little after 8:00 a.m. on May 9, 2008, she arrived at her job site. As she drove into the parking garage, she noticed a person who did not seem to belong there because he was dressed in a large green or gray Army-type overcoat and shaggy, baggy clothes, including jeans. At trial, Fellenstein identified this person to be Mitchell.
Fellenstein parked and got out of her truck and looked at Mitchell. Mitchell started to walk away. Fellenstein got her purse out of her truck, placed it over her shoulder, and reached back into the vehicle to get a box. From close behind her Mitchell said, “Give me that.” Fellenstein refused and pushed away from him. Mitchell pulled a knife and said, “Are you joking? Are you kidding me?” Afraid, Fellenstein ducked, pushed away, and backed away from Mitchell and his knife. Mitchell pushed her, and she fell to the ground. Mitchell grabbed her purse and ran out of the garage. The purse’s contents included a wallet, camera, 12 sequentially-numbered dollar bills, about $300, and make-up.
Fellenstein ran after Mitchell, who had run across the street. It appeared Mitchell was trying to keep his pants up as he ran. Fellenstein ran across the street in the middle of traffic and lost sight of him. She flagged down a police officer (Officer Lawson) who was heading towards her.
Concord Police Officer Lawson testified that he was on patrol around 8:30 a.m. on May 9, 2008, when he saw an African-American male running down the sidewalk, about 15-20 feet away, towards an apartment complex and into the parking lot. The man was wearing a green puffy jacket and faded baggy blue jeans with gold trim, and he appeared to be trying to hold up his pants as he ran. At trial, he identified the man to be Mitchell.
Less than 30 seconds later, Fellenstein ran across the street in the officer’s direction, causing traffic to stop suddenly. Officer Lawson contacted Fellenstein, who appeared upset and reported that she had just been robbed of her purse at knifepoint, in the parking garage across the street, by an African-American male in a green jacket and baggy blue jeans. Believing the description matched the man he had just seen running, the officer set up a perimeter around the apartment complex.
Officer Lawson approached Hector Alvarez, a maintenance worker at the apartment complex, and asked if he had seen an African-American man enter the complex wearing a green jacket and baggy blue pants. Alvarez replied that he had seen the man, and that he lived in apartment 217. About 5-10 minutes later, officers had established a perimeter around the building.
A K-9 unit responded to the scene and picked up the robber’s scent at the robbery site. The scent led across the street to the apartment complex and ultimately to apartment 217, where the canine alerted by scratching the door with his paw and barking. Mitchell then jumped out of the window of apartment 217, where he was captured and arrested.
Mitchell was wearing a gray tank top and baggy jeans with gold trim around the pockets and a solid gold stripe down the outer seam of each leg. Police found a knife in his possession; Fellenstein believed the blade was similar to the one used in the robbery, but she could not say for sure it was the same knife.
Inside apartment 217, Officer Lawson observed the jacket, which he had seen Mitchell wearing earlier, on the floor next to the open window from which Mitchell had jumped. Two other African-American males in the apartment were interviewed and released. Fellenstein’s camera was found in the freezer of the apartment.
Mitchell was brought to an in-field identification in which he was the only subject; Mitchell was handcuffed, about 10-15 feet from Fellenstein, and accompanied by probably two officers. Fellenstein positively identified Mitchell as the suspect who robbed her.
Mitchell, complaining of pain in his leg, was transported to the hospital by ambulance. Because Mitchell was very agitated, claimed he did not care what happened to him or what he did, and said he felt like he could hurt anyone, Officer Lawson accompanied him in the ambulance out of concern for the paramedic’s safety.
In the emergency room, Mitchell taunted Officer Lawson and Officer Gordon. Officer Lawson gave the Miranda admonition, and Mitchell responded: “Fuck you. I confess I did it, but I’m gonna get you. You’re a dead man. I’m gonna kill you. Fuck you man.”
Mitchell later asked Officer Lawson if his two friends at the apartment had been arrested. When Lawson said they had not, Mitchell replied he was happy because they had nothing to do with it. Mitchell again informed Lawson that he “did it.”
Fellenstein’s purse, wallet, three hundred dollars, and make-up were not recovered.
C. Verdict and Sentence
The jury found Mitchell guilty of count one (second degree robbery) and count two (aggravated assault) and found true the special allegation (personal use of a knife) as to count one. The jury found him not guilty of count three (criminal threats against a police officer).
At a bifurcated trial, the court found the prior prison commitment allegation to be true.
The court imposed the upper term of five years on count one, stayed the section 12022, subdivision (b)(1) enhancement, and stayed the midterm of three years on count two pursuant to section 654. The court declined to impose an enhancement under section 667.5, subdivision (b), in the interests of justice.
This appeal followed.
II. DISCUSSION
Mitchell’s appellate counsel represented in the opening brief in this appeal that he wrote to Mitchell and advised him of the filing of a Wende brief and his opportunity to file his own supplemental brief within 30 days thereafter. We have not received a supplemental brief.
Appellate counsel notes in the opening brief that Mitchell requests us to conduct an independent review of the record, but nonetheless notes the following as items for us to consider: “1. Did the trial court err when it restricted the scope of the defense’s cross-examination when it refused to allow questioning of Officer Lawson about the fact that he had previously arrested one of the men found in Apartment 217 for crimes of assault and burglary? [¶] 2. Appellant requests the Court consider whether there was sufficient evidence that he was the perpetrator in light of the following facts: Fellenstein did not accurately identify appellant’s jacket or notice his distinctive jeans with gold trim; Alvarez did not see appellant running or appear to be out of breath; neither the purse, nor wallet nor other cash was found anywhere near where appellant could have been in the time frame between the robbery and his capture; the allegedly sequentially numbered dollar bills, which would have been strong evidence of guilt, were referred to but not produced at trial.” Counsel does not provide any legal authority or argument, however, supporting a suggestion of possible error.
The court did not commit reversible error in precluding the defense’s cross-examination of Officer Lawson about the fact he had previously arrested Mitchell’s friend for assault and burglary. The court has broad discretion to determine the admissibility of such evidence at trial. (See People v. Brown (2003) 31 Cal.4th 518, 544-545.) Our review of the record leads to the conclusion that such discretion was not abused and that any error in that regard was harmless in light of the independent evidence of Mitchell’s guilt.
More than sufficient evidence supported the conclusion that Mitchell was the perpetrator of the charged crimes, despite the matters he raises. Victim Fellenstein chased the robber into the street; Officer Lawson saw the man matching the robber’s description, followed by Fellenstein, run into the apartment complex; Alvarez saw the man enter the apartment complex and knew he lived in apartment 217; the canine unit tracked the robber’s scent from the site of the robbery to apartment 217; when the canine alerted outside the apartment, Mitchell fled by jumping out the window, leaving behind a green jacket resembling the one worn by the robber; Mitchell’s jeans matched the description of the robber’s jeans; Fellenstein’s camera was found in the freezer of Mitchell’s apartment; Mitchell had a knife on him; Fellenstein identified Mitchell in the field within a short time after the robbery; and both Fellenstein and Officer Lawson identified Mitchell at trial. On top of that, Mitchell confessed that he “did it” – twice – after being read his Miranda rights.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.