Opinion
D069601
01-17-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID PETERS, Defendant and Appellant.
Kessler & Seecof and Daniel J. Kessler, under appointment of 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD254493) APPEAL from a judgment of the Superior Court of San Diego County, Sharon B. Majors-Lewis, Judge. Affirmed. Kessler & Seecof and Daniel J. Kessler, under appointment of the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
David Peters, who is also known as Shalako Blackfoot, was sentenced to prison as a third strike offender for 54 years plus 10 consecutive terms of 25 years to life each after a jury found him guilty of nine counts of robbery (Pen. Code, § 211), one count of attempted robbery (id., §§ 211, 664), and one count of vehicle theft (Veh. Code, § 10851); and the trial court found true allegations Peters had a prior conviction that constituted a serious felony for purposes of a recidivist enhancement (Pen. Code, § 667, subd. (a)(1)), had three prior convictions that constituted strikes under the "Three Strikes" law (id., §§ 667, subds. (b)-(i), 1170.12), and served four prior prison terms (id., § 667.5, subd. (b)). Appellant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) summarizing the proceedings but urging no grounds for reversal. We have reviewed the record and found no reversible error and therefore affirm the judgment.
FACTUAL BACKGROUND
Peters went on a crime spree in January and February of 2014. The facts of each incident resulting in a conviction are briefly described below.
Count 1 (Robbery)
On January 16, 2014, at about 3:00 a.m., Peters entered a Subway sandwich shop with a knife in his hand, told the employee on duty to "give [him] the money," and then departed with approximately $1,100 in cash. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 2 (Robbery)
On January 20, 2014, at about 4:00 a.m., Peters entered a different Subway sandwich shop, told the employee on duty "it was a robbery," and demanded the employee open the cash register. When the employee refused, Peters unsuccessfully tried to pry the register open with a screwdriver, and then dropped the screwdriver and departed with the cash register, which contained approximately $800. A shoe print on the cash register matched that of a shoe later recovered from Peters's motel room. A criminalist who performed DNA tests on the screwdriver identified Peters as a possible major contributor. At trial, the employee identified Peters, and the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 3 (Robbery)
On January 23, 2014, at about 2:40 a.m., Peters entered a 7-Eleven store with a knife and told the cashier to open the cash register and give him all the money. When the cashier handed over several bills, Peters left the store. At trial, the cashier identified Peters, and the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 4 (Attempted Robbery)
On January 26, 2014, at about 3:00 a.m., Peters entered a convenience store, showed the cashier a firearm, and told her to open the cash register. When the cashier refused and instead telephoned 911, Peters left. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 5 (Robbery)
On January 26, 2014, at about 6:00 a.m., Peters entered a third Subway sandwich shop, told an employee who was counting money from the cash register to "give [him] the money," and lifted his sweatshirt to reveal a gun in his waistband. The employee ran out of the store, and Peters made off with approximately $300. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 6 (Robbery)
On January 27, 2014, at about 5:00 a.m., Peters entered a doughnut shop, told the employee on duty it was a robbery, displayed a gun, and left with approximately $100 the employee gave him from the cash register and $2 he stole from the tip jar. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 7 (Vehicle Theft)
On February 7, 2014, the theft of a 2013 Dodge Charger was reported to the San Diego Police Department. On February 25, federal law enforcement officers who were monitoring the location spotted the Charger at a motel, saw Peters loading luggage into it, and arrested him.
Count 8 (Robbery)
On February 10, 2014, at about 3:30 a.m., Peters entered the same Subway sandwich shop involved in count 2, pointed a gun at the face of the same employee, and demanded money. When the employee again refused, Peters took the cash register, which contained approximately $20, the employee tip jar, and the employee's mobile telephone. The employee identified Peters in a photographic lineup. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 9 (Robbery)
On February 17, 2014, about 3:00 a.m., Peters entered a fourth Subway sandwich shop with a gun, told the employees on duty to get on the floor, took a mobile telephone belonging to one of them and $400 to $500 from a safe, and then left. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 10 (Robbery)
On February 22, 2014, at about 4:30 a.m., Peters entered a Circle K store, took a handgun from his waistband, demanded money from the cashier, and left with approximately $100. The cashier identified Peters in a photographic lineup and at trial. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
Count 11 (Robbery)
On February 24, 2014, shortly after midnight, Peters entered a gas station, gestured with gloved hands as if he had a gun in his waistband, demanded the cashier give him the money in the cash register, and departed with the money when the cashier complied. A pair of gloves found discarded near the gas station was analyzed for DNA and found to contain a single source that matched Peters's profile. At trial, the prosecutor showed the jury video surveillance from a security camera that captured the incident.
DISCUSSION
Peters's appellate counsel has filed a brief, pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth a statement of the case, urging no grounds for reversal of the order, and asking this court independently to review the record for error. Pursuant to Anders, counsel identified the following issues to assist this court in its search for reversible error:
(1) Whether legally sufficient evidence supports the convictions.
(2) Whether the trial court erred by not suspending proceedings at Peters's counsels request to determine whether Peters was competent to stand trial.
(3) Whether the trial court erred by denying Peters's motion to sever counts for trial.
(4) Whether the trial court erred by denying Peters's motion to suppress the identification evidence relevant to count 10.
(5) Whether the trial court erred by denying Peters's motion to exclude expert testimony concerning shoe prints found on the cash register involved in count 2.
(6) Whether the trial court erred by not declaring a mistrial after Peters appeared to become ill in the presence of the jury.
(7) Whether the trial court abused its discretion by denying Peters's motion to dismiss the allegations concerning one of his prior strike convictions.
After receiving the opening brief from appellate counsel, we informed Peters he could file a supplemental brief. He did not respond.
We have reviewed the record consistent with the requirements of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738; considered the issues listed by appointed counsel; and found no reasonably arguable grounds to reverse or to modify the judgment. Appointed counsel has represented Peters competently on this appeal.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. HALLER, J.