Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA059007, Charles L. Peven, Judge.
Patrick Shanard Norman, in pro per.; and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted Patrick Shanard Norman of robbery. The jury also found that Norman personally used a firearm (Pen. Code, § 12022.53, subd. (b)) and a principal was armed (§12022.5, subd. (a)) in the commission of the robbery. The jury acquitted appellant of a charge of grand theft of a firearm. The trial court sentenced appellant to 13 years in prison, consisting of the middle term of 3 years, plus 10 years for the section 12022.53, subdivision (b) enhancement.
Unless otherwise specified, all further statutory references pertain to the Penal Code.
John Pae testified that he, appellant, and Marlin Hardin were employees of a medical marijuana dispensary in Sunland. The dispensary contracted for an armed security guard, but appellant and Hardin provided a secondary level of security. After Pae closed the dispensary on the night of March 4, 2007, appellant, Hardin, and a third man came in. Pae’s girlfriend, Heidi Kim, told Pae that appellant had a gun. Pae entered the office and saw appellant and another man emptying the marijuana from the safes and putting it into garbage bags. Appellant picked a gun up from the floor and touched the barrel to Pae’s chest. Appellant told Pae to be quiet and sit down. Pae complied. Appellant, Hardin, and the third man left with all of the dispensary’s marijuana, as well as its cash, gun, and computer.
Appellant filed a timely appeal. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Appellant filed a letter brief raising seven contentions or points for our consideration.
Appellant first argues that Pae gave contradictory statements or testimony regarding the presence of a security guard at the dispensary at the time of the robbery. As far as the record reveals, appellant is mistaken. Pae never testified that the security guard was at the dispensary at the time of the robbery. He testified the guard had been there earlier, until 6:00 p.m., at least, but Pae did not know when the guard left. No prior inconsistent statements regarding the presence of a security guard were mentioned during the trial or otherwise appear in the appellate record.
Appellant next argues that his trial attorney was ineffective because he told appellant that if appellant admitted the crime, he would receive probation or a maximum term of five years. Counsel’s purported statement does not appear in the appellate record. Moreover, appellant did not act on this purported advice. He neither pled guilty to either charge nor admitted his involvement in the crime at trial. He cannot, therefore, demonstrate a reasonable probability that he would have obtained a more favorable result, but for counsel’s purportedly erroneous advice. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Although appellant admitted that he “did it” while speaking to a police officer, counsel had not yet been appointed for him and therefore could not have given appellant the purported advice. Furthermore, appellant’s admission to the police had no effect upon the outcome of the trial because the trial court suppressed appellant’s statements, apparently because the officer continued to speak to appellant after he repeatedly invoked his right to counsel.
Appellant further argues that no gun was found, “so the allegation of a gun is hearsay.” The jury’s finding on the firearm-use allegations was necessarily based on Pae’s and Kim’s testimony that they saw appellant with a gun, which he used to threaten Pae. This testimony was not hearsay and constituted substantial evidence supporting the jury’s findings.
Appellant also argues that no fingerprint or video surveillance evidence was obtained from the crime scene. This is true, but inconsequential. The testimony of Pae and Kim provided substantial evidence in support of appellant’s conviction. The absence of fingerprints and surveillance footage did not detract from the sufficiency of the evidence.
Appellant next argues that Pae’s testimony was implausible because he “said that the suspects were armed with guns,” yet he testified that he greeted one of them, then went into another room. Appellant theorizes that Pae would not greet or walk away from someone with a gun. Pae testified he greeted Hardin, who was his friend, but no one testified that Hardin had a gun. Apparently only one gun was used, and appellant had it. In any event, the credibility of the witnesses was an issue for the jury. Testimony believed by the trier of fact is rejected on appeal only if physically impossible or obviously false. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Pae’s testimony was neither physically impossible nor obviously false.
Appellant also argues that his co-defendant was acquitted. This is true, but also inconsequential. The fact that a co-defendant escaped conviction does not establish the insufficiency of the evidence against appellant. (People v. Palmer (2001) 24 Cal.4th 856, 861.) Furthermore, the difference in the verdicts here is readily explainable: Kim and Pae knew appellant well because he was their co-worker and had been for some time, but Keeton was a stranger. Indeed, Pae testified that before the robbery, he considered appellant to be his friend; Kim testified she often ate lunch with appellant when they were both at the dispensary. In addition, neither Kim nor Pae had much opportunity to observe the third robber. Kim testified she just got a brief look at the man she did not know, and Pae testified that the third man had his back to Pae most of the time they were in the same room. Pae was uncertain of his identification and circled two photos in the six-pack containing Keeton’s photo. Keeton’s entire defense was misidentification, and he called a psychology professor from U.C.L.A. to testify as an expert regarding the unreliability of witness identifications and potential suggestiveness of police identification procedures. Keeton also demonstrated, through the testimony of the investigating officer, that Kim and Pae were both in the lobby of the police station when they were shown the photo six-pack containing Keeton’s photo, and that they were both present when the owner of the dispensary—who was not present during the robbery—circled the photo of Keeton, whom he knew. Keeton was thus able to cast doubt upon his identification by Kim and Pae. No such doubt was possible regarding these witnesses’ identification of appellant.
Finally, appellant argues that appellate counsel rendered ineffective assistance by “using my restitution for a reason not to fight for me.” The appellate record does not reflect the event or communication to which appellant refers, and appellant therefore has demonstrated neither deficient performance by appellate counsel nor resulting prejudice.
We have examined the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.