Opinion
A148948
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMON LEE MYLES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082059)
Defendant Raymon Lee Myles appeals from a judgment issued after jury trial in which he was convicted of two counts of robbery, certain special allegations were found to be true, and the court sentenced him to a total term of four years in state prison. His court-appointed counsel filed a brief raising no legal issues and requesting this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and did not do so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues for our review and affirm the judgment.
BACKGROUND
In October 2014, the San Mateo County District Attorney charged defendant in an information with two felony counts of second degree robbery under Penal Code section 212.5, subdivision (c) for alleged robberies on July 24, 2014 (count one), and August 17, 2014 (count two). It was also alleged that defendant had suffered a prior felony conviction and had served a prior prison term (§ 667.5 (b)), and alleged regarding count one that defendant had personally used a deadly weapon, i.e., a knife (§ 12022 (b)).
All statutory references in this opinion are to the Penal Code.
Before trial, the court consolidated this case with San Mateo County Superior Court case number SC083344, in which defendant was charged with one count of attempted second degree robbery (§§ 664 and 212.5) for an alleged robbery on May 7, 2015. It was further alleged that defendant had been out on bail (§ 12022.1) and had served a prior prison term (§ 667.5 (b)). This attempted robbery charge was litigated as count three in the subsequent jury trial.
In March 2016, jurors were selected and a jury trial conducted. Prior to trial, the court granted defendant's request to bifurcate the issues so as to have a separate trial for the People's out on bail and prior prison term allegations, but denied the request that the deadly weapon allegation be bifurcated. The court also ruled on a series of motions in limine. During the trial, the court denied defense motions to exclude a recording of a jail phone call, which we will further discuss, and to dismiss count three pursuant to Penal Code section 1118.1 for lack of evidence.
After opening statements, the trial court dismissed a juror who expressed a concern about being able to remain impartial at the request of the defense, without opposition from the prosecution. Later, the court declined to consider another juror's request to be excused for hardship without objection from the parties.
I.
Evidence Regarding Count One
Gervasio Luis Flores-Vasquez testified through an interpreter that on July 24, 2014, at about 7:45 p.m., he was selling snow cones and other food from a portable cart by Baylor Street in East Palo Alto, California. He had money in his pocket that he had received from customers in the previous few hours. A man Flores-Vasquez identified as defendant approached him and asked him to prepare a snow cone. Defendant then moved closer and told Flores-Vasquez, " 'Give me the money." He was holding a knife. When Flores-Vasquez said he did not have any money, defendant grabbed him, put his hand in Flores-Vasquez's pocket, and took out the money that was in there. Flores-Vasquez did not know how much money was taken, but thought it could have been as much as $200. Defendant got into a pearl white Infiniti automobile that was smashed in the front. As Flores-Vasquez walked towards a nearby park, defendant tried to block him with his car. When Flores-Vasquez said something about the police, defendant left.
East Palo Alto Police Sergeant Angel Sanchez testified that he responded to a report of an armed robbery on Baylor Street. He saw a car and driver about three or four blocks from the site of the reported robbery that matched the descriptions he had received and followed the car. The car was not traveling in the direction of what was later determined to be defendant's home. Sanchez initiated a traffic stop after the car parked, which was about 15 to 20 minutes after he received the original call about the robbery. He detained defendant, who was positively identified by the person who reported the robbery. Sanchez found two dollars in defendant's pocket, but did not find a knife or any cash in defendant's vehicle.
II.
Evidence Regarding Count Two
Oscar Aviles, a 27-year-old manager at a moving company, testified that he, his brother Salvador and Salvador's girlfriend, Claudia, drove to a market in East Palo Alto at about 11:30 p.m. on August 17, 2014. They parked about two spaces to the left of the store's entrance, next to a whitish-beige Infiniti automobile. Oscar and Salvador started towards the store entrance while Claudia stayed in the car. Defendant, who was standing with another person, approached Salvador and asked if they had some "fire," which Oscar understood to mean marijuana. Salvador suggested Oscar give him a phone number, but Oscar indicated he could not help defendant and walked into the store, where he and Salvador bought some things and took them back to their car. They then decided to return to the store.
We refer to the Aviles brothers by their first names for clarity's sake and mean no disrespect by doing so.
Oscar further testified that when he and Salvador came out of the store the second time, the Infiniti was no longer parked next to their car. Salvador got into the driver's seat of their car. Defendant then stopped the driver's door from closing by holding it with his hand. With his other hand in his pocket, defendant asked Oscar if he was from the area, and Oscar said he was from the midtown area of East Palo Alto. Defendant then said, " 'All right. I need you to give me that money,' " and indicated he was serious about it. Oscar gave defendant all the money he had, which was about $140. He did not know what defendant had in his pocket, wanted to avoid any further confrontation and was concerned about Salvador's and Claudia's safety. Also, Oscar observed that defendant was bigger and probably weighed "a lot more" than him, and Oscar was also concerned about defendant's companion attacking him. As soon as Oscar gave defendant the money, defendant and his companion, who was standing nearby, ran to the Infiniti and drove away.
Oscar then spoke to the market's operator and looked at some surveillance video from the store. Although the video did not capture the confrontation, Oscar had the operator provide the police a still photo from the video of a man inside the store wearing a shirt with a "minion" on it and a hat with a bluish-green visor and logo on it, as the image was of the man who robbed him.
During cross-examination, Oscar denied that defendant said to him or Salvador, "You guys owe me money for drugs I sold you" or that defendant insisted Oscar owed him $40 for drugs. Oscar acknowledged that defendant did not show a weapon or attempt to hit, grab or threaten him.
Salvador also testified. He said when he left the store the second time and got into the car, "[a] big black guy" put his hand in the door and prevented Salvador from closing it, and asked him and Oscar for money. The man had a hand in his pants, which could have been because he was holding a weapon or just holding up his pants. Oscar gave the man four or five dollars; the man indicated he wanted the rest and said, "Give me the money." Oscar gave him over $100 and the man ran away. Later that night, Salvador identified the man for the police from a field lineup, and was between 90 and 100 percent sure of his identification at that time.
Salvador's girlfriend, Claudia Jimenez, testified that she stayed in the car during the incident. She had no memory of what the man who robbed them looked like, but recalled he approached Oscar and said something like, "Give me your money." He was holding a hand toward his left hip, "implying that he had some sort of weapon or something." He put his hand on the driver's door so that Salvador could not close it after Salvador got into the car. Oscar gave the man some money, but the man insisted that he give him the rest, which Oscar did. The man "took off running and hopped in a car." Later that evening, Jimenez identified a photo of the man for the police. Evidence presented at trial indicated this was a photo of defendant.
Another witness, Eustacio Alfredo Als, testified that at the time of the incident he was cleaning a grill in front of a taqueria where he worked. He saw defendant standing between a car door and the car's driver as the driver was getting into the car. Defendant approached the driver. Als was "pretty sure" the man said, " 'Where's my money?,' " but the man could have said something like, " 'Where's the money?' " The driver gave him some money. Defendant asked, "Where's the rest?," and the driver showed his wallet to defendant and said, " 'Here. I don't have any more.' " The driver got into the car and drove away, and defendant walked away. The man walked past Als and got into a yellow, older Infiniti automobile. Als did not recall what he told police about what the man said during the incident.
Als was aware there were two brothers involved in the incident, and testified that one of the brothers told him on the night of the incident that he had been robbed. Als encountered the brothers in a waiting room at the trial and said the brother with a beard gave the man money during the incident.
East Palo Alto Police Officer Aleyda Romero testified that she interviewed Als about the incident. She wrote in her report of the interview that Als recalled the man saying, " 'Give me the money' " and " 'Where's the cash?' " She further testified that she listened to a recording of a telephone call made several days after the incident from the jail where defendant was housed. She recognized defendant's voice on the recording.
The recording of the telephone call was played for the jury. In it, a woman says to defendant, "Ain't nobody doesn't tell you to go and rob something. You the one that made that." Defendant responds, "You're right. You got it babe. You're right." Asked what he got out of it, defendant says, "It's the spirit of the moment. It's the spirit of the moment. And then the running' around high and shit. Trippin' and fuckin' off and doing stupid shit. Just being ignorant. I don't know wasting time. I don't wanna do it no more."
III.
Evidence Regarding Count Three
Tobias Madrigal testified through an interpreter that on the evening of May 7, 2015, he was by his truck, which was parked on a street in East Palo Alto, when a man he identified as defendant approached him. Defendant, speaking in English, asked to use Madrigal's phone and said the battery in his own phone was dead. From about four or five feet away, defendant told Madrigal not to move and moved his own hand towards the rear of his waistband. Defendant again said not to move, and then said, "Give me the money that's in your pockets." Madrigal said he did not have a phone or any money. When defendant just stood there, Madrigal said, " 'I'm going to shout out to my family that lives in this apartment building.' " Defendant replied, " 'Oh, no. I was just asking for the phone,' " and walked away. Defendant did not threaten Madrigal or show him any weapons.
Madrigal had his son call the police, who came to the location and arrested defendant, who had remained in the area, standing about 150 to 200 feet away from Madrigal with his phone still in his hand. Madrigal told the police that defendant had tried to rob him. Asked how much English he could speak, Madrigal replied that he could not speak it, but could understand what was being said.
East Palo Alto Police Officer Robert Weigand testified that he detained defendant upon a report to police of a robbery and Madrigal's identification of defendant as the man who tried to rob him. Defendant had a phone with him. Weigand found it would not turn on. Defendant was wearing very loose-fitting jeans that either had to be held up or secured with a belt.
IV.
Subsequent Proceedings
After closing argument, the court instructed the jury, including in response to jury questions. Its instructions included a sua sponte instruction regarding evidence of a defendant's statements, CALCRIM No. 358, which was requested by the People and objected to by the defense.
The jury found defendant guilty of robbery as alleged in counts one and two. It deadlocked on the count one allegation that he personally used a deadly weapon, and also deadlocked on count three. The court declared a mistrial as to both matters. Subsequently, the People informed the court it would not seek retrial on these matters; the court dismissed without objection count three and ordered the allegations included in that count and regarding the personal use of a deadly weapon in count one stricken.
Defendant waived his right to a jury trial regarding the allegation that he served a prison term for a prior conviction. The court found the allegation to be true. The court also found that the jury's verdicts and findings regarding counts one and two necessarily included findings regarding the special allegations brought under sections 1192.7 and 667.5, without objection from the defense.
In June 2016, the court held a sentencing hearing. The court concluded that defendant was presumptively ineligible for probation as a result of the verdict and findings, and that defendant had not overcome this presumption. The court then reviewed factors in aggravation and mitigation and sentenced defendant to the mid-term of three years for count one, to a concurrent three years for count two, and to "one additional year" for the prior prison term allegation, for a total term of four years in state prison. The court also imposed certain testing, fine and fee requirements, and awarded defendant certain custody and conduct credits.
The trial court's oral judgment imposing this additional one-year sentence is clear, but this sentence is not included in the court's minute order and is referred to in the abstract of judgment as stayed. The court's oral judgment controls. (See People v. Jones (2012) 54 Cal.4th 1, 89 ["It is well settled that '[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize' "].) --------
Defendant filed a timely notice of appeal from the court's judgment.
DISCUSSION
Defendant's appointed counsel has not identified any arguable appellate issues for our review. We have independently reviewed the record and find no arguable appellate issues. Our analysis has included, but is not limited to the following:
We have not found any arguable violations of law or abuse of discretion regarding the court's consolidation or bifurcation rulings, the selection and excusing of jurors, the motions in limine, defendant's motion to exclude the jail recording, defendant's section 1118.1 motion and the court's jury instructions.
The testimony we have summarized provides substantial evidence to support the jury's verdict and findings regarding count one and count two, and the court's finding regarding the prior prison term allegation.
We find no arguable appellate issues regarding count three or the deadly weapon allegation that was a part of count one. In any event, the court dismissed these after the jury deadlocked and the People indicated it would not pursue them further, so defendant has no reason to challenge these rulings.
We have also reviewed the court's sentencing rulings. We do not find any arguable appellate issues regarding these matters either.
DISPOSITION
We conclude based on our independent review pursuant to Wende that there are no arguable appellate issues for our review. The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.