Opinion
E070326
09-12-2018
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1701070) OPINION APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant, Victor Manuel Moreno, of attempted robbery. (Pen. Code, §§ 664, 211; count 1.) Defendant thereafter admitted he had suffered a prior serious felony (§ 667, subd. (a)) and prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to an aggregate term of imprisonment of seven years eight months, consisting of the following: the low term of one year four months on count 1, doubled pursuant to the strike prior, and a consecutive five-year term on the prior serious felony conviction.
All further statutory references are to the Penal Code.
After defendant's counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the facts and a statement of the case. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim testified that during the early morning on September 23, 2017, while still dark, he was working on his car in the parking lot outside his girlfriend's apartment prior to leaving for work. As he was hunched over, defendant grabbed him on the shoulder, pulled him backward "pretty hard," shoved him, cursed at him, and said "'Give me your things.'" Defendant appeared upset; he removed his shirt and proposed fighting with the victim.
The victim shoved defendant back and went to the apartment, where his girlfriend called 911. The victim reported that defendant left toward a marketplace parking lot not far away, where the victim could still see defendant. The victim gave a description of defendant to the 911 dispatcher.
An officer responded to the victim's girlfriend's apartment and spoke with the victim. The victim gave the officer a description of defendant. Thereafter, the officer responded to the marketplace where he located defendant. The officer conducted an in-field identification with defendant and another individual. The victim identified defendant as the perpetrator. The victim identified defendant at trial and testified he was sure of his in-field identification of defendant.
Prior to trial, defense counsel moved in limine to impeach the witness with multiple arrests he had sustained for domestic violence. The court observed that "you wish to bring out a litany of domestic violence that has been purported to the alleged victim in this case, but I don't believe there have been any convictions. They're just the series of dates back last year that police were called . . . [and] the alleged victim said these things have occurred." Defense counsel acknowledged there were arrests, but not convictions. The court noted there had been no filings against the victim; defense counsel agreed. The court denied the request, noting that litigating the domestic violence offenses would likely take longer than the trial on the charged offenses against defendant itself and that, since no charges had been filed, the victim would be "placed in a box" as to whether to testify regarding those alleged offenses.
The court also denied one of two pinpoint instructions requested by defendant. The court denied the defense request that the jury be instructed: "The force required for robbery must be more than the incidental touching necessary to take the property."
After trial, defendant filed a Romero motion requesting the court to strike defendant's prior strike conviction. The People opposed the motion. The court denied the motion, finding: "Going through the history of the defendant and his criminal history and the offense that he has been convicted of, I'm going to deny the request under Romero. This is not the most egregious case by far, and I—but it is . . . . He stands convicted of attempted robbery, and he does not have a clean background by any measure whatsoever."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The probation officer's report reflects defendant had sustained three prior felony convictions as an adult and two prior felony adjudications as a juvenile. It further reflects two prior misdemeanor adjudications as a minor and nine prior misdemeanor convictions as an adult. Defendant's convictions and adjudications included the following offenses: two burglaries, grand theft, criminal threats, and four batteries. Defendant had at least three other pending cases at the time of judgment, which the court dismissed. --------
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.