Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F03323
HULL, J.Appointed counsel for defendant Michael Shedon Rucker asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no concerns regarding presentence credits. We will affirm the judgment.
I
On May 2, 2009, Antoine R., his sister Kim R., and his girlfriend C.H., were at the light rail station looking for a car to buy. They saw a white car with defendant standing next to it. Kim R. asked defendant if he wanted to sell the car. Defendant indicated he would sell the car but he had people he needed to “drop off.” Defendant told Antoine R. his name was “Mike B.” and said he would meet Antoine R. later; defendant asked $900 for the car. Defendant then gave Antoine R. a phone number where Antoine R. could reach him.
After Antoine R. returned home, he and defendant exchanged a few telephone calls. Approximately 30 minutes later, Antoine R. called defendant and arranged a meeting at Mack Elementary School about 20 minutes later.
Antoine R. arrived at the school with his sister Kim R., C.H., and another friend, N.C. Defendant was already there. It was getting dark; defendant’s car was parked next to the school, on the street. Defendant was in the vehicle with a passenger.
N.C. parked the car and everyone got out. Antoine R. set a piece of paper on N.C. ’s car and began to write a bill of sale. At the same time, defendant got out of the white car but his passenger remained inside. With both cars still running, defendant said he needed to “use the restroom, ” and walked away toward some bushes.
Excited about the new car, C.H. climbed into the driver’s seat of the white car. N.C. and Kim R. called to C.H.; C.H. got out of the white car and walked back toward N.C. ’s car. N.C. and Kim R. then told C.H. that “something didn’t feel right”–-things were not going as planned. Then C.H. heard something that sounded like a gun being cocked.
From the corner of his eye, Antoine R. saw defendant pull out something that looked like a stick. Antoine R. turned and saw defendant holding what appeared to be a shotgun. Still standing by N.C. ’s car, Kim R. saw defendant with a long gun in his hand. C.H. also saw defendant holding a “long black gun.”
When the women saw the gun, they screamed but no one on the street heard them scream. There was a car driving nearby--it did not stop. Antoine R. believed he was in danger of being shot. Kim R., eight months pregnant, begged defendant not to shoot her brother.
Defendant “cocked” the gun, pointed it at Antoine R., and told Antoine R. to give him the money; Antoine R. took the money from his pocket, and handed it to defendant. The total amount was somewhere between $900 and $1,000 dollars, and was comprised of hundreds, twenties, and ones. Defendant’s passenger then rifled through Antoine R.’s pockets, turning them inside out.
Everyone then returned to their respective vehicles and drove away. Antoine R. was now driving N.C. ’s vehicle; he noticed that defendant appeared to be following them. Someone in Antoine R.’s car called 9-1-1.
Antoine R. spoke with a Sacramento Police Department operator. He told the Sacramento Police Department operator that he was trying to buy a car and was robbed at gunpoint approximately five or 10 minutes before he called 9-1-1. He said the car following him was a white car. Antoine R. described the person who robbed him as a black man, 21 to 22 years old, about six feet tall, with a medium, muscular build. Antoine R. indicated the man was wearing a white T-shirt and jeans, and called himself “Mike.”
During his call to 9-1-1, Antoine R. continued driving. After turning a few corners, Antoine R. was now behind defendant’s car trying to get the license plate number. At some point, defendant stopped the white car and pointed the shotgun at Antoine R. The entire incident lasted approximately 15-25 minutes.
Antoine R. then drove his car to a liquor store and told the 9-1-1 operator they would wait there for the police. The call ended when the police arrived at the liquor store. Antoine R. reported the incident to the police, described defendant, and gave the officers the phone number defendant had given him. Defendant was subsequently apprehended by the police and identified by Antoine R. and C.H. as the individual who robbed them at gun point.
Defendant was subsequently charged with second degree robbery (Pen. Code, § 211). It was further alleged that defendant personally used a firearm to commit that robbery (Pen. Code, § 12022.53, subd. (b)). Defendant pleaded not guilty to the charges, and following a jury trial was convicted as charged. Defendant was subsequently sentenced to an aggregate term of 13 years in state prison: the middle term of three years for robbery, and an additional 10 years for the gun enhancement. Defendant also was ordered to pay various fines and fees and was awarded 449 days of custody credit (391 actual and 58 days of conduct).
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to presentence conduct credit, as he was committed for a serious felony, robbery. (Pen. Code, §§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010], 1192.7, subd. (c)(19).)
II
Appointed counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment is affirmed.
We concur: RAYE, P. J. HOCH, J.