Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC070223A
RIVERA, J.
Defendant’s counsel filed an opening brief in which he raised no issues and asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant was charged by an amended information with two counts of second degree robbery (Pen. Code, § 212.5, subd. (c)) with the allegations that the offenses were serious felonies within the meaning of section 1192.7, subdivision (c)(19), and two counts of grand theft (§ 487). The amended information further alleged that defendant suffered a prior strike conviction (§ 1170.12, subd. (c)(1)); a prior serious felony (§ 667, subd. (a)); and that he served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
Trial commenced on March 15, 2010. Defendant moved in limine to exclude his statements to the police officer upon his arrest as obtained in violation of Miranda. The motion lacked merit; the court did not err in denying it. Defendant also moved in limine to exclude a photograph taken of him during the booking process, arguing that it was unduly suggestive. The court properly denied the motion. Finally, defendant moved in limine to exclude testimony concerning the Electronic Tracking Systems (ETS) device, contending there was insufficient foundation for the testimony. The court denied the motion, ruling that the prosecution would be required to lay the appropriate foundation for any testimony concerning the device. The parties agreed to bifurcate the issues of the prior convictions.
Miranda v. Arizona (1966) 384 U.S. 436
The evidence presented to the jury showed the following:
1. The Wells Fargo Bank robbery
On November 25, 2009, at approximately 3:30 p.m., defendant entered the Wells Fargo branch at 81West Hillsdale Boulevard in San Mateo and approached Wendy Rojas’s teller station. He handed her an envelope on which there was a handwritten note, stating that she was being robbed, not to give any trackers or press any alarms, that he wanted $100 and $50 bills, and to return the note. Rojas was nervous and scared so she followed his instructions and did not activate the bank’s alarm. She gave defendant $3,800. Defendant placed the money in a black plastic bag and left the bank. Rojas identified defendant at trial and in a photographic lineup as the robber and also testified that he was the person in the video surveillance footage taken at the time of the robbery. The video footage was shown to the jury.
The police responded to the scene. In investigating the robbery, Detective Alex Rizzato went to the Hillsdale Mall, located directly across the street from the Wells Fargo Bank, to check for any possible witnesses or evidence pertaining to the robbery. At the Lucky Brand store (Lucky store), he found employees who recognized defendant from the video stills taken at the Wells Fargo bank. Daryn Hon, a Lucky store employee, was working at the Lucky store on November 25, 2009, and testified that he saw the individual depicted in the Wells Fargo video stills as having been in the store between 3:00 p.m. and 4:00 p.m. that day. Defendant purchased a black thermal shirt and a pair of jeans and decided he wanted to wear the clothing out of the store. Hon removed the sensor tag on the jeans and helped defendant remove the tags from the other clothing. Defendant was sweating profusely and had a roll of $100 bills in his pockets. Defendant paid for his merchandise with three $100 bills. Hon identified defendant as the man he assisted in his store on November 25, 2009. In a photographic lineup, Hon identified two photographs as resembling the customer he helped. One of the photographs was of defendant. Defendant’s fingerprints were found on a clothing tag from the Lucky store.
Chris Canotal was also working that day at the Lucky store and saw defendant enter the store with a black plastic bag. Canotal assisted defendant in purchasing three items—a black thermal top, a black shirt, and black jeans—from the store. Defendant changed into the new clothes and wore them out of the store. Defendant left the tags from the clothing in the fitting room. Canotal gave the tags to Detective Rizzato. Canotal identified defendant at trial and in a photographic lineup. Two of defendant’s fingerprints were found on a Lucky clothing tag.
2. The Citibank robbery
On December 23, 2009, Ramon Andrada was working as a teller at the Citibank branch located at 61 West Hillsdale Boulevard in San Mateo, the same building in which the Wells Fargo Bank branch was robbed on November 25, 2009. At approximately 4:30 p.m., defendant entered the bank and handed Andrada a bank withdrawal slip with “This is a robbery” written on it. Andrada was shocked, scared, and concerned for the safety of customers at the branch. Andrada asked defendant, “What can I do for you?” Defendant said, “Hurry up. Give me your cash.” Andrada gave him approximately $1,900 including money that contained a tracking device, and pushed the bank’s alarm. Andrada tried to keep the note, but defendant demanded it back. Andrada identified defendant in court, and in a photographic lineup. The bank’s video surveillance footage was played for the jury.
Officer Klyde Hussey responded to a dispatch radio call alerting him that an ETS signal was coming from the area south of Middle Road and El Camino Real. Hussey’s attention was drawn to a white Lincoln town car that was being driven by a white male who appeared to be in his forties. Hussey pulled up behind the car and took down the license plate information. He learned that the car was registered to defendant. At the time, however, Hussey was receiving dispatch information that the robbery suspect was a black male, and that another officer was receiving an ETS signal from a different location. Hussey therefore did not effect a stop of the Lincoln. He identified defendant at trial as the man he saw driving the Lincoln.
Malinda Ladson, defendant’s girlfriend, was in defendant’s car when he was arrested. The police searched her purse and found $277 in cash. She claimed that she received the money from selling her dog. She admitted that she was on parole and had suffered prior felony convictions for driving a stolen vehicle, receiving a stolen vehicle, and grand theft.
Officer Anthony Riccardi testified that Ladson told him the money in her purse, with the exception of $35, belonged to defendant. She did not mention that the money was the proceeds from selling a dog. Riccardi testified that the money in Ladson’s purse included a $20 bill with an ETS serial number matching the service acknowledgement form from ETS.
Detective Glen Teixeira searched defendant’s Lincoln town car after he was arrested. He found the vehicle registration showing that the car was registered to defendant and also found a pair of Lucky brand jeans, and a long-sleeve black Lucky Brand thermal shirt, and a black baseball cap. The cap appeared to be the same type as that worn by the robber in the Wells Fargo and Citibank surveillance footage.
The court properly instructed the jury which found defendant guilty of two counts of second degree robbery. In a bifurcated proceeding, the court found that the robbery offenses were serious felonies within the meaning of section 1192.7, subdivision (c)(19). The court further found the prior conviction and serious felony allegations to be true with the exception of the allegation that defendant suffered a prior conviction in Nevada.
On April 19, 2010, the court, having read and considered the probation report and defendant’s Romero motion, denied the motion, reasoning that although the prior conviction was old, defendant had continued to commit crimes of violence. The court sentenced defendant to a term of 11 years in state prison – four years for the Wells Fargo robbery (low term of two years doubled due to the strike prior); a consecutive two year term for the Citibank robbery (one-third the midterm of three years doubled); and a consecutive five year term for the serious felony prior conviction. The court stayed the term on the section 667.5, subdivision (b) prior prison term allegation pursuant to section 654 as it related to the same conduct as the section 667, subdivision (a) enhancement. The court granted defendant custody credits of 124 days. The court dismissed the two counts alleging the lesser included offense of grand theft. There was no error in the sentencing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
Defendant has filed a supplemental brief in which he contends that his trial and appellate counsel were ineffective. He raises numerous issues including that his trial counsel failed to: (1) investigate and interview witnesses; (2) investigate defenses and the Miranda issue; (3) object to certain evidence and instructions; and (4) move to suppress the “suggestive identification procedure.” He also argues that the prosecutor committed misconduct and suppressed exculpatory evidence, that the photographic lineup was unduly suggestive, and that the court abused its discretion in obtaining involuntary waivers from him.
We have reviewed the entire record and considered the contentions raised by defendant in his supplemental brief. There are no meritorious issues to be argued or that require further briefing on appeal.
Defendant was represented by counsel throughout these proceedings. As to defendant’s claims of ineffective assistance of counsel, “except in those rare instances where there is no conceivable tactical purpose for counsel’s actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal.” (People v. Lopez (2008) 42 Cal.4th 960, 972.) Furthermore, “[i]f the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) On the record before us, there are no meritorious issues of ineffective assistance of counsel to be argued, or that require further briefing on appeal.
DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.